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Tentative Rulings
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DEPARTMENT 85 LAW AND MOTION RULINGS




Case Number: 23STCP03550    Hearing Date: August 6, 2024    Dept: 85

 James Samatas, et al. v. City of Los Angeles, et al., 23STCP03550 

 

 

Petitioner Steven Lintz (“Lintz”) seeks leave to amend to add previously dismissed James Samatas (“Samatas”) as Petitioner and to dismiss Developer as a Real Party-in-Interest 

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.  

 

A. Statement of the Case 

1. The Petition 

On September 25, 2023, then Petitioners Samatas and Lintz filed the verified Petition against Respondents City of Los Angeles (“City”), Los Angeles Department of Building and Safety (“LADBS”), and the Board of Building and Safety Commissioners (“BBSC”) (collectively, “City”)The Petition names Tanager View LLC (“Tanager” or “Developer”) and Berserker LLC (“Beserker”) as Real Parties-in-Interest and alleges claims for mandamus and declaratory reliefThe Petition alleges in pertinent part as follows. 

Petitioner Lintz is the current owner of 1424 N. Tanager Way (“1424 Tanager”) which neighbors the PropertyPet., ¶5.  Lintz acquired 1424 Tanager from Petitioner Samatas, who initiated a series of appeals against the Property based on building height violations, as well as two prior lawsuits filed August 16, 2016 and March 29, 2018, respectively.  Pet., ¶¶ 5, 16.  Lintz has provided Samatas with a Special/Limited Power of Attorney in connection with the claims that are the subject of this actionPet., ¶5.  

The parties’ dispute concerns an abuse of discretion by Respondent LADBS in allowing the¿construction of an over-height 14,000 square-foot residence (“Project”) located at 1410 N.  Tanager Way in the Hollywood Hills (“Property”) in contravention of the Project’s original building permitsPet., ¶1A supplemental permit and a certificate of occupancy were improperly issuedId.  The property is subject to Los Angeles Municipal Code (“LAMC”) section 12.26.K.  Pet., ¶5Respondent BBSC violated the applicable 30-foot height limit despite Petitioners evidence that Real Party Tanager illegally manipulated the Property’s topographical lines to misrepresent the Project’s height so that an illegal structure was built.   Pet., ¶¶ 1, 8.  Petitioners challenge LADBS’ actions allowing the Project to be constructed in violation of applicable height limits and the Project’s original building permits, including LADBS’ initial denial of Petitioners’ appeal and the BBSC’s subsequent denial of appeal and request for reconsiderationPet., ¶4. 

 

a. May 2018 Building Permits 

In connection with the replacement of the Property’s existing residence of less than 3,000 square feet, LADBS issued permits under the 2011 Hillside Ordinance (“Hillside Ordinance”) for the grading and construction of an approximately 13,471-square-foot residencePet., ¶13The Hillside Ordinance, codified at LAMC section 12.21.C.10(d)(2), allows a project to exceed the maximum envelope height only with Zoning Administrator (“ZA”) approval. Pet., ¶34At the time, the Project’s building permits showed a new 30-foot structure that would be built in compliance with the applicable height limitPet., ¶1.  

  

b. May 2018 Appeal to LADBS 

In May 2018, when it became apparent that the Project’s construction violated the 30-foot height noted on the plans, Petitioner Samatas appealed to LADBSPet., ¶15LADBS agreed with his appeal that the Project was over-height and accordingly refunded Petitioner’s appeal feeId.  LADBS did not require the over-height construction to be demolishedId.  

 

c. Supplemental Permit 

In October 2018, after Developer exerted its influence with the City, Petitioner learned that LADBS had issued a supplemental permit for a¿new, fictional height limit of 36 feet which violates the zoning code and allowed the as-built structure that exists todayPet., ¶15. 

Given that the original plans used the 30-foot height limit permitted by the zoning code, Petitioner Samatas filed appeals from the building permits pursuant to LAMC section 12.26.K.  Pet., ¶15LADBS denied the appeals and forced an appeal of that determination to the ZAId.  Despite the fact that the structure already exceeded 30 feet, Planning stated it was too early to determine whether the residence would violate the LAMC’s height limit upon completionId.  LADBS advised that it would measure the height of the Project after the building was completely constructed but before a certificate of occupancy was issuedThe ZA did not take action on the appeal for years and ultimately terminated the appeal without prejudice on June 3, 2022 with an invitation to file a new appeal at a subsequent timeIdThis decision resulted in approximately a three-year delayId.  

 

d. Post-Completion Appeal of Building Permits 

After the Project was completed, a licensed surveyor, Neil Hansen ((“Hansen”) of N.C. Hansen, Inc., was retained and surveyed the as-built height of the Project and issued a report dated June 30, 2022 (“Hansen Report”)Pet., ¶17, Ex. B.  The Hansen Report concluded that the Project significantly exceeds the 30-foot maximum envelope height permitted by the City’s Hillside¿OrdinancePet., ¶18. 

On August 1, 2022, Petitioner Samatas filed an appeal from the Property’s building permits pursuant to LAMC section 12.26.K on the grounds that LADBS abused its discretion in allowing the construction of a single-family dwelling that exceeded the maximum building envelope height required for buildings in the Hillside Area in contravention of LAMC section 12.21.C.10(d)(1) of the Hillside Ordinance.  Pet., ¶19, Exs. A, C.  On December 5, 2022, LADBS summarily denied the building permit appeal. Pet., ¶22, Ex. F.   

LADBS informed Petitioner Samatas that the appeal would be forwarded to the BBSC for a determination instead of forwarding the appeal to a ZA and the Planning Commission as required under LAMC section 12.26.K.  Pet., ¶¶ 23, 26.  By doing so, LADBS did not have to prepare a written report with findings as required by the LAMCId.   

The appeal was set on BBSC’s August 22, 2023 agendaPet. ¶24.   On August 21, 2023, Petitioners’ counsel submitted a letter to the BBSC which outlined why it lacked jurisdiction and that the appeal should be heard by the Director of the Department of Planning (“Planning”)Pet., ¶25, Ex. G.  

Despite not having the authority to do so pursuant to LAMC section 98.0403.1(b)(2), the BBSC heard Petitioners appealPet. ¶ 26On August 24, 2023, the BBSC issued its Final Action letter which denied Petitioners’ appeal, affirming LADBS’ prior denial of the building permit appealPet. ¶27, Ex. H.  The denial was substantively based on testimony by LADBS employee Victor Cuevas (“Cuevas”) that he visited the Property and performed a measurement by “dropping a tape measure.”  Id.  Cuevas’ tape measure effort would not accurately measure height because there is a large balcony below the roof and extending east for a significant distanceId.  Measurement of height under the Hillside Ordinance also is based off natural grade, which Cuevas would not have been able to identify by dropping a tape measureIt further is based on a point five feet from the buildingId.  Neither Petitioners’ counsel nor Hansen were permitted to respond to Cuevas’ testimonyId.   

 

e. Request for Reconsideration 

On August 25, 2023, Petitioners’ counsel filed a Request for Reconsideration from the BBSCs Final Action letter pursuant to LAMC section 98.0312.  Pet. ¶ Ex. I.  On September 19, 2023, the hearing on the request for reconsideration took placeNone of the Commissioners addressed any of the points in Petitioners’ counsel’s August 25, 2023 letter regarding the impossibility of measuring techniquesPet. ¶29.  

On September 21, 2023, the BBSC issued a Final Action letter denying Petitioners’ Request for Reconsideration. Pet. ¶29, Ex. J.  

Petitioners seek (1) a writ of mandate under Code of Civil Procedure (“CCP”) section 1085, or in the alternative, CCP section 1094.5 (a) directing LADBS to set aside the building permits, (b) directing the BBSC to set aside its Final Action letter, and (c) ordering that all construction exceeding maximum envelope height be demolished.  Petitioners also seek (a) temporary and preliminary injunctive relief prohibiting the issuance of additional building permits for the Project that violate the maximum envelope height, (b) a declaration that the Project is over-height and that the BBSC did not properly hear the appeal of the building permits because they should have been heard by the ZA and then the Planning Commission.  Petitioners further seek attorney’s fees and costs.   

 

2. Course of Proceedings 

On December 11, 2023, the court partially granted Petitioners ex parte application to authorize service of process on Beserker through the Secretary of State and/or by publication. 

On December 12, 2023, the court found the instant case related to cases BS164400, BS173012, and 23STCP03550 within the meaning of California Rules of Court Rule 3.300(a)For good cause shown, said cases were assigned to Department 85 at Stanley Mosk Courthouse and all hearings in Department 82 were vacated.  

On April 16, 2024, the court sustained the demurrer of the City and Developer as to Petitioner Samatas and overruled it as to Lintz.  The court found that Samatas lacked standing because title records show that he sold 1424 Tanager in May 2021 and now resides in IllinoisTherefore, “Samatas cannot establish that anything the City did after he sold 1424 Tanager prejudicially affected his substantial rights, or that he will benefit from a mandamus ruling.”  The court authorized Samatas to file a motion to establish his standing. 

 

B. Applicable Law 

California courts employ a liberal approach to amendment of pleadings in light of a strong policy favoring resolution of all disputes between parties in the same actionNestle v. Santa Monica, (‘Nestle”) (1972) 6 Cal.3d 920, 939; Morgan v. Superior Court, (“Morgan”) (1959) 172 Cal.App.2d 527, 530Pursuant to this liberal policy, requests for leave to amend will normally be granted unless (a) the party seeking to amend has been dilatory in bringing the proposed amendment before the court, and (b) the delay in seeking leave to amend will cause prejudice to the opposing party if leave to amend is grantedHirsa v. Superior Court, (“Hirsa”) (1981) 118 Cal.App.3d 486, 490Absent a showing of prejudice, a delay in seeking an amendment alone does not justify denial of leave to amendHiggins v. Del Faro, (“Higgins”) (1981) 123 Cal.App.3d 558, 564-65Moreover, where the plaintiff is the party seeking leave to amend, mere proximity to the trial date, absent any prejudice, does not constitute ground for denial if the plaintiff is amenable to a continuance of the trial dateMesler v. Bragg Mgt. Co., (1985) 39 Cal.3d 290, 297. 

The reason for a liberal policy is that if a plaintiff has a good cause of action, which by accident or mistake he has failed to set out in his complaint, the court should permit him to amendHiggins, supra, 123 Cal.App.3d at 564-65Hence, where an amendment provides merely the addition of matters essential to make the original cause of action complete, effecting no change in the nature of the case and thus causing no surprise or prejudice to the adverse party, the amendment should be allowed by the courtId., at 565. 

A motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading; (2) be serially numbered to differentiate the amendment from previous amendments; and (3) state the page, line number, and wording of any proposed interlineation or deletion of allegations or materialCRC 3.1324(a)The motion shall be accompanied by a separate declaration specifying the effect of the amendment, why it is necessary and proper, when the facts giving rise to it were discovered, and the reasons why the request for amendment was not made earlierCRC 3.1324(b). 

In ruling on a motion for leave to amend, a trial court will not normally consider the viability of the proposed amendmentsKittredge Sports Co. v. Superior Court, (1989) 213 Cal.App.3d 1045, 1048The court, however, has discretion to deny an amendment that fails to state a cause of action or defenseFoxborough v. Van Atta, (1994) 26 Cal.App.4th 217, 230The court also has discretion to deny “sham” amendments -- i.e., those that omit or contradict harmful facts alleged in the original pleading, unless sufficient excuse existsGreen v. Rancho Santa Margarita Mortgage Co., (1994) 28 Cal.App.4th 686, 692; Berman v. Bromberg, (1997) 56 Cal.App.4th 936, 945-946 (sham amendment rule does not apply to change of legal theories). 

 

C. Statement of Facts1 

While the construction was ongoing at the Property and certain building permit appeals initiated by Samatas were pending, he entered into a California Residential Purchase Agreement and Escrow Instructions (“PSA”) with Petitioner Steven Lintz (“Lintz”) for 1424 Tanager Way on or about April 2, 2021 Samatas Decl., ¶2, Ex. FParagraph 6, entitled “Other Terms,” referenced Paragraph 1 of an attached Addendum which provides:  

 

[Samatas] shall retain the rights at all times, to continue legally pursuing it’s [sic] case against the City of Los Angeles regarding building and permit violations at 1410 Tanager Way and [Lintz], once holding title, shall continue to effectuate these rights. The award and any settlement recovered, shall be construed as additional consideration of the Real Estate Purchase Price, and shall remain [Samatas’] exclusively and not subject to any additional commission fees. [Samatas] shall pay for all cost[s] associated with pursuit of the referenced legal cases at no expense to [Lintz]. (Emphasis added.) Samatas Decl., ¶2, Ex. F (emphasis added). 

 

Lintz also provided Samatas a Special/Limited Power of Attorney (“Power of Attorney”) dated August 11, 2023Samatas Decl., ¶3, Ex. G.  The Power of Attorney appoints Samatas as Lintz’s attorney-in-fact for the Claim and Claim Proceedings, or the settlement thereofEx. G, p. 2A “Claim” is defined as the administrative appeals for the construction at the Property and “Claim Proceedings” is defined as any subsequent court proceedings concerning the ClaimEx. G, p. 1. 

Because Samatas sold 1424 Tanager while his building permit appeal was pending and the Project persisted, he did not believe he received top dollar or market value in connection the sale of 1424 Tanager WayHe also had invested time and money in the administrative appealThe PSA and Power of Attorney gave him a pathway to be made wholeSamatas Decl., ¶4. 

 

D. Analysis 

Petitioner Lintz seeks leave to file an FAP that renames Samatas as a Petitioner and dismisses Developer as a Real Party.   

California courts employ a liberal approach to amendment of pleadings in light of a strong policy favoring resolution of all disputes between parties in the same actionNestle, supra, 6 Cal.3d 920, 939; Morgan, supra, 172 Cal.App.2d 527, 530Pursuant to this liberal policy, requests for leave to amend will normally be granted unless (a) the party seeking to amend has been dilatory in bringing the proposed amendment before the court; and (b) the delay in seeking leave to amend will cause prejudice to the opposing party if leave to amend is grantedHirsa, supra, 118 Cal.App.3d 486, 490Absent a showing of prejudice, a delay in seeking an amendment alone does not justify denial of leave to amendHiggins, supra, 123 Cal.App.3d 558, 564-65.   

 

1. Procedural Issues 

The City and Developer assert that the  motion is procedurally defective because it fails to comply with CRC 3.1324(b)Opp. at 11Any motion for leave to amend a pleading must include a declaration that specifies (1) the effect of the amendment, (2) why the amendment is necessary and proper, (3) when the facts giving rise to the amended allegations were discovered, and (4) why the request for amendment was not made earlierCRC 3.1324(b)Lintz did not include a proposed amendment/pleading and the supporting declaration fails to explain the effect of the amendment or why it is properOpp. at 10. 

Lintz replies that line-item edits to the Petition are unnecessary because the motion only seeks to return Samatas as a Petitioner and leave to dismiss Developer as a Real Partythe allegations in the Petition will remain exactly the same The declarations submitted with the motion set forth the facts why Samatas has standingReply at 9-10.   

The City and Developer also argue that the motion is a disguised motion to reconsider that does not comply with CCP section 1008Opp. at 10-11. 

Lintz correctly replies that, in ruling on the demurrer, the court found that Samatas lacked standing. During the hearing, Samatas counsel made an offer of proof based on the PSA and Power of Attorney that were not before the courtThe court permitted Samatas to file a motion for leave to amend the Petition to get back into the case Reply at 3-4. 

The court will not deny the motion on either procedural ground. 

 

2. Merits 

Standing is a threshold issue necessary to maintain a cause of action, and the burden to allege and establish standing lies with the plaintiff.¿ Mendoza v. JPMorgan Chase Bank, N.A.,¿ (2016) 6 Cal.App.5th 802, 810As a general rule, a party must be “beneficially interested” to seek a writ of mandate.  Friends of Oceano Dunes, Inc. v. San Luis Obispo County Air Pollution Control Dist.,¿(2015) 235 Cal.App.4th 957, 962 (citing CCP §1086)Likewise, to seek declaratory relief, a party must be an “interested person.”  CCP §1060An “interested person” means the same thing as a “beneficially interested” person in mandamus casesAsimow, et al., Administrative Law (2018), Ch. 14, §14:6.  The term beneficially interested” has been generally interpreted to mean that one may obtain the writ only if the person has some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.  SJJC Aviation Services, LLC v. City of San Jose, (“SJJC”)¿(2017) 12 Cal.App.5th 1043, 1053The beneficial interest must be direct and substantialIbidA petition has no beneficial interest if she will gain no direct benefit from the writ’s issuance and suffer no direct detriment if it is deniedIbid. 

Lintz argues that Samatas has standing because he expressly bargained for a stake in this litigation (and any subsequent litigation relating to the City’s issuance of permits for the Project)Standing to pursue administrative mandamus is not limited to property ownersMola Development Corp. v. City of Seal Beach, (1997) 57 Cal.App.4th 405, 415 (non-owners may have standing by virtue of participation in entitlement process and substantial stake in the project)Samatas is beneficially interested because the PSA and Power of Attorney -- which must be read together because the PSA was entered into first -- expressly contemplate that Samatas could pursue claims against the CityAlthough the Power of Attorney allows Samatas to prosecute claims in Lintz’s name (as he now owns 1424 Tanager), the prosecution is for Samatas own benefitAny award will be construed as additional consideration for Lintz’s purchase of the property and shall be Samatas’ exclusivelyEx. F, AddendumMot. at 10-11. 

Lintz adds that Samatas can obtain a monetary settlement in this mandamus action or a monetary recovery in a future action The PSA provides a mechanism by which Samatas can add to the “Real Estate Purchase Price” and the Power of Attorney is the vehicle by which he may do soStated differently, while the claim may belong to Lintz by virtue of the property sale, the contract between Lintz and Samatas gives all monetary benefits of the claim (in this proceeding and any subsequent proceeding) to SamatasMot. at 10-12.    

Lintz’s argument is that Samatas has standing for two reasons: (1) the PSA gives Samatas an interest in any settlement of this mandamus case and in any future claims for compensation, including a nuisance action that may be brought subsequent to this action and (2) the Power of Attorney allows Samatas a pathway to be made whole because the PSA gives all monetary benefits of any claim to Samatas.    

 Neither supports Samatas’ standing for this mandamus action because he “will gain no direct benefit from [the writ’s] issuance and suffer no direct detriment if it is denied.” SJJC, supra, 12 Cal.App.5th at 1053As the City and Real Party argue (Opp. at 14-15), the beneficial interest must be in the mandamus writ itself, not some potential economic benefit consequential to the writThe potential for settlement is not a direct benefit of the mandamus action and also purely speculativeLikewise, any potential future award in a nuisance case is not a direct benefit of mandamus.   

Lintz distinguishes two of cases cited by the City and Developer (Opp. at 12-14) as involving a competitive interest that was insufficient to confer standing.   See San Luis Rey Racing, Inc. v. California Horse Racing Bd., (2017) 15 Cal.App.5th 67, 75 (provider of off-site stabling for racehorses during race meetings lacked mandamus standing to overturn orders of Horse Racing Board regarding the management of a fund because petitioner’s “stated interest is competitive in nature” and there was no evidence that the Legislature intended to address the competitive market for offsite stabling); Waste Management of Alameda County, Inc. v. County of Alameda, (“Waste Management”) (2000) 79 Cal.App.4th 1223, 1335 (petitioner did not have CEQA standing because it did not have a direct interest in requiring competitor to undergo a CEQA review).2  Reply at 5. 

Lintz also argues that Sacramento County Fire Protection Dist. v. Sacramento County Assessment Appeals Bd., (“Sacramento County”) (1999) 75 Cal.App.4th 327, 332-33 (petitioner fire district had to refund previously collected tax dollars based on a reassessment of a large property’s value and could not challenge the reassessment because it did not have any special interest or particular right to be protected over that of the public) is factually distinguishable but does not explain why its legal analysis does not applyReply at 5-6  

Finally, Lintz distinguishes County of San Luis Obispo v. Superior Court, (“County of San Luis Obispo”) (2001) 90 Cal.App.4th 288, 293-95 (former property owner with no remaining interest in the property did not have standing to compel a county planning department to issue certificates of compliance and new owner settled the dispute anyway)  Lintz argues that Samatas does not seek to reacquire his former property, the dispute has not been extinguished by settlement, and unlike the former property owner, Samatas has a contract with Lintz to obtain any recovery stemming from litigation.  Reply at 6. 

Whatever the merits of these distinctions, the fact remains that the case law -- particularly Sacramento County and County of San Luis Obispo -- shows that the beneficial interest must be direct and not hypotheticalSamatas has no direct beneficial interest in the outcome of this mandamus case. 

Samatas’ Power of Attorney does give him the right to pursue Lintz’s claim, but only in Lintz’s nameIn other words, Lintz is a proper Petitioner by and through SamatasBut the Power of Attorney does not provide Samatas standing to sue in his own name. 

The parties debate the validity of the Power of AttorneyThe City and Real Party argue that under Probate Code section 4121(c), a power of attorney must be “either (1) acknowledged before a notary public or (2) signed by at least two witnesses who satisfy the requirements of Probate Code section 4122 Kaneko v. Yager, (2004) 120 Cal.App.4th 970, 979. The Power of Attorney attached to the motion is not notarized and lacks witness signaturesOpp. at 17.   

Lintz replies that “the Probate Code provisions concerning powers of attorney only apply to durable powers of attorney, statutory powers of attorney under the Uniform Statutory Form Power of Attorney Act (Prob. Code, § 4400 et seq.), and powers of attorney that specifically incorporate the Probate Code provisions. (Prob. Code, § 4050, subd. (a).).” Jozefowicz v. Allstate Ins. Co., (2019) 35 Cal. App. 5th 829, 835-36 These Probate Code provisions do not apply to a power of attorney where the authority of the attorney-in-fact is coupled with an interest Prob. Code §4050(b)(1).   Id. at 836 That is the case for Samatas’ Power of Attorney which couples his attorney-in-fact power with his interest in recovering under itReply at 8-9. 

The parties also debate whether the Power of Attorney creates a disqualifying conflict of interest for SamatasOpp. at 16; Reply at 9-10.   

The court need not resolve these issuesIt is sufficient for purposes of this motion to note that Lintz has standing, and that he may pursue his claim either directly or through Samatas as his attorney-in-fact, but the Power of Attorney does not confer standing on Samatas to make his own claim. 

 

3. Estoppel 

Lintz relies on equitable and promissory estoppel to assert that the City cannot claim that Samatas lacks standingLintz argues that the City seeks to take advantage of its own wrong because it unjustifiably tried to run out the clock on Samatas by delaying his administrative appeal for years even though construction had already topped off and it was illogical to expect that the house was going to magically become lower in height as the work on interior finishes proceeded.  Samatas could have filed his suit long before he sold 1424 Tanager to Lintz had the City not rendered the appeal process a charade designed to deprive Samatas of a fair process as alleged in the PetitionBut, of course, any suit while the administrative appeal remained open would have been challenged by the City for failure to exhaust administrative remedies. The City knew exactly what it was doing and should not be able to benefit from this gamesmanshipMot. at 13. 

Equitable estoppel applies in circumstances where a party has induced another into forbearing to actLantzy v. Centex Homes, (2003) 31 Cal.App.4th 363, 383The elements of estoppel are: (1) the party to be estopped must be appraised of the facts; (2) he must intend that his conduct shall be acted upon; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injuryDriscoll v. City of Los Angeles, (1967) 67 Cal.2d 297, 305The doctrine applies to a public entity in the same manner as a private party when the elements of equitable estoppel have been shown, and when the injustice which would result from a failure to estop the agency is sufficient to justify any adverse effect upon public interest or policy which would resultCity of Long Beach v. Mansell, (1970) 3 Cal.3d 462, 496-97. 

The elements of promissory estoppel are “(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) the reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his or her reliance.” Aceves v. U.S. Bank N.A., (2011) 192 Cal.App.4th 218, 225. 

Lintz does not attempt to meet the elements of either equitable or promissory estoppelThe City did nothing to induce Samatas from forbearing to actTo the contrary, he professes to have been eager to file suitNor did the City make any promise to Samatas on which he could reasonably relyEstoppel has no application to justify adding Samatas as a Petitioner. 

 

4. Developer as a Real Party 

Lintz argues that the Developer sold the Property to Berserker and therefore should be dismissed as a Real PartyOn demurrer, Developer argued that Samatas lacks standing by virtue of selling 1424 Tanager to Lintz It is the Developer that lacks any interest in this action and should be dismissed After constructing the Project, on or about May 30, 2023, Developer sold the Property to Berserker -- a Real Party that was served but has yet to appear -- for a purchase price of $25,000,000 Mehta Decl., Ex. EMot. at 14-15. 

CCP section 389 governs the joinder of parties and the inclusion of all persons whose interests are so directly involved that the court cannot render a fair adjudication in their absence. When filing the Petition, the Petitioners believed that it was possible that Developer and Berserker were connected and named Developer as a Real Party out of an abundance of caution Later discussions between counsel evidence that Developer and Berserker have no relationship. Consistent with Developer’s own arguments, if a writ is issued in this action, the only parties that will need to take action or be impacted will be the City and Berserker, not Developer. Developer has no interest in this action and leave should be granted to dismiss it as an unnecessary partyMot. at 15. 

The City and Developer respond that Lintz is conflating a petitioner’s mandamus standing with the separate law that all indispensable parties must be joinedTo obtain a writ, a petitioner must have a beneficial interest in the writ itself.  CCP §1086 The controlling test for determining whether a party is an indispensable party, however, concerns whether the “plaintiff seeks some type of affirmative relief which, if granted, would injure or affect the interest of a third person not joined, that third person is an indispensable party.”  Templeton Action Comm. v. Cnty. of San Luis Obispo, 228 Cal.App.4th 427, 431 Tanager View is the developer of the Project and the permit applicant The developer of a project is a real party-in-interest, irrespective of whether or not they own the underlying land Id. at 431 (“When a plaintiff seeks to set aside a developer’s permit, it is obvious that such relief directly affects and can injure the developer’s interests.”)Lintz provides no case law supporting any other conclusion If he chooses to dismiss Developer, he may do so without the court’s permission. But his motion inappropriately seeks an advisory opinion, which the court should declineOpp. at 19-20. 

Lintz replies that the City and Developer fail to establish why Developer is an indispensable party now that it has sold the Property to Berserker The developer in Templeton had not sold its property 228 Cal.App.4th at 429-31 (Templeton Properties was the owner of the land subject to the application) Reply at 11. 

Lintz is correct that Developer does not appear to have any interest in this mandamus caseHowever, the opposition also is correct that Lintz is free to dismiss DeveloperSee CCP §§ 581(b)(1), 581d; CRC 3.1390.  If it seeks to remain in the case as an indispensable party, Developer would then have to make an appropriate motion. 

 

E. Conclusion 

The motion for leave to amend to add Samatas as Petitioner, and to dismiss Developer as a Real Party, is denied.


Case Number: 23STCP3011    Hearing Date: August 6, 2024    Dept: 85

Cynthia Mabus v. Culver City and Culver City Council, 23STCP03011

 

The court has read and considered the moving papers, oppositions, and reply, and renders the following tentative decision.  

 

A. Statement of the Case 

1. First Amended Petition 

On August 18, 2023, Petitioner Mabus filed the Petition alleging a cause of action for administrative mandamus against the CityThe operative pleading is the First Amended Petition (“FAP”) filed on January 16, 2024 and alleging in pertinent part as follows. 

 

a.  Petitioner’s Request for Parkway Tree Removal 

Petitioner Mabus owns the property located at 10729/10731 Northgate Street, Culver City (the “Property”)FAP, ¶6Two trees located on public property directly adjacent to the Property are known problem species trees and are too large for the area in which they are locatedFAP, ¶7These problem trees have caused substantial damage to Petitioner’s improvement on the Property, the Property itself, and public propertyFAP, ¶7.   

On October 1, 2019, Petitioner filed a request for a parkway tree removal of the two trees (the “Request”) with the Culver City Public Works Department-Maintenance Operations Division (“Public Works”) pursuant to Culver City Municipal Code (“CCMC”) section 9.08.210.B.  FAP, ¶8 Tree removal is required under CCMC section 9.08.210.c.2.b.-.c if a tree meets either of the following conditions:  (1) the tree roots are creating extensive and repeated damage to public and/or private infrastructure, including sidewalks, sewer lines or other utility lines, but a history of sewer blockages does not alone provide sufficient reason for tree removal and rather suggests the need for sewer repair and/or (2) the tree is creating a public or private nuisance.  FAP, ¶8. 

After an arborist inspected the two trees, Public Works determined that both trees exhibit potential for major branch failure and need to be removedFAP, ¶10On February 25, 2020, Public Works provided notice to the public pursuant to CCMC section 9.08.21.E that Petitioner’s Request to remove the trees had been grantedFAP, ¶11. 

 

b.  Jablin’s Appeal 

Pursuant to CCMC section 9.08.210(F), any party wishing to reverse a decision by Public Works must submit an appeal in writingPursuant to that same section, “[a]ppeals shall be heard by the City Council, which shall affirm the decision of the Public Works Director, unless the appellant demonstrates, by substantial evidence, that the decision is based on error in fact or dispute findingsThe decision of the appeal shall be final.”  FAP, ¶12. 

On March 2, 2020, City resident Jablin appealed the Public Works decision to remove the two treesFAP, ¶13Jablin admitted in his written appeal that the two trees “over many years, have caused damage to the road surface and the sidewalk and meet the criteria in the City code for potential removal.”  FAP, ¶14. 

On August 10, 2020, the City Council held the initial hearing on Jablin’s appealFAP, ¶15The City Council voted to delay the appeal to allow for potential resolution to be worked on by the City, Jablin, and PetitionerFAP, ¶15. 

On October 11, 2021, the City Council again held the hearing on Jablin’s appeal of the Public Work’s decision to remove the trees. FAP, ¶16At the hearing, neither Jablin nor any other party provided any substantial evidence or testimony showing that Public Work’s decision to remove the trees was based on error in fact or disputed findingsFAP, ¶17On October 11, 2021, despite the lack of any evidence that would support reversal of the Public Works decision to remove the trees, the City Council voted to grant Jablin’s appealFAP, ¶18.   

 

c. Mabus v. Culver City (“Mabus I”) 

Petitioner filed a mandamus petition from the City Council’s decision to grant Jablin’s appeal and reverse the decision of Public Works to remove the two treesFAP, ¶20The mandamus petition was granted and judgment was rendered in Petitioner’s favor on March 15, 2023FAP, ¶20.   

 

d. The City Council’s May 22, 2023 Resolution 

In response to the writ, on May 22, 2023, the City Council held a public hearing and adopted Resolution No. 2023-R033 (the “Resolution”) setting aside the October 11, 2021 decision reversing the Public Works’ decision to remove the treesFAP, ¶21. 

 

e.  Request for Relief 

Petitioner maintains that the Resolution is erroneous and improper in that the City Council prepared and considered new and additional evidence in coming to its conclusionsFAP, ¶22The Resolution does not conform to, and is in violation of, the judgment in Mabus IFAP, ¶23The Property and Petitioner have been harmed by the trees and will continue to be harmed. 

 

2.  Course of Proceedings 

Petitioner filed the Petition on August 18, 2023Petitioner served Respondents City and City Council on August 23, 2023.   

The Petition did not name Jablin as a Real PartyThe court held trial setting conferences on November 27, December 14, and January 9, 2024, and ordered Petitioner to name Jablin as a Real Party.   

On January 16, 2024, Petitioner filed the FAP naming Jablin as Real PartyPetitioner served Jablin with the FAP on January 21, 2024.   

On March 12, 2024, the City filed its Answer to the FAPOn March 15, 2024, Jablin filed his Answer to the FAP. 

On July 3, 2024, the court denied Petitioner’s ex parte application to exceed the page limits of CRC 3.1113(d).   

 

B. Standard of Review 

A party may seek to set aside an agency decision by petitioning for either a writ of administrative mandamus (CCP §1094.5) or traditional mandamus (CCP §1085)A petition for traditional mandamus is appropriate in all actions “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station....”  CCP §1085.   

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agenciesTopanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 51415.   

CCP section 1094.5 does not on its face specify which cases are subject to independent review, leaving that issue to the courtsFukuda v. City of Angels, (“Fukuda”) (1999) 20 Cal.4th 805, 811In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (1971) 4 Cal.3d 130, 143See CCP §1094.5(c)In all other cases, the substantial evidence standard applies“Substantial evidence” is relevant evidence that a reasonable mind might accept as adequate to support a conclusion (California Youth Authority v. State Personnel Board, (“California Youth Authority”) (2002) 104 Cal.App.4th 575, 585), or evidence of ponderable legal significance, which is reasonable in nature, credible and of solid valueMohilef v. Janovici, (1996) 51 Cal.App.4th 267, 305, n. 28.   

The trial court considers all evidence in the administrative record, including evidence that detracts from evidence supporting the agency’s decisionCalifornia Youth Authority, supra, 104 Cal.App.4th at 585.  “‘[T]he test of substantiality must be measured on the basis of the entire record, rather than by simply isolating evidence which supports the board and ignoring other relevant facts of record which rebut or explain that evidence.’ [Citations.]” Martori Brothers Distributors v. Agricultural Labor Relations Bd., (1981) 29 Cal.3d 721, 727 (italics added.)  Gerawan Farming, Inc. v. Agric. Labor Relations Bd., (2018) 23 Cal.App.5th 1129, 1162.  The standard is met if there is relevant evidence in the record which a reasonable mind might accept in support of the findingsId. (citation omitted)If there is a plausible basis for the decision, the fact that contrary findings may be equally reasonable, or even more so, is of no momentId. 

Questions of law are reviewed de novo.  Duncan v. Dept of Pers. Admin., (2000) 77 Cal.App.4th 1166, 1174 

The agency’s decision must be based on the evidence presented at the hearingBoard of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decisionTopanga, supra, 11 Cal.3d at 51415Implicit in CCP section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or orderTopanga, 11 Cal.3d at 515. 

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proofSteele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137“[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion.”  Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.  The petitioner has the burden of demonstrating that the agency’s findings are not supported by substantial evidence in light of the whole recordYoung v. Gannon, (2002) 97 Cal.App.4th 209, 225.   

 

C. Governing Law 

Under CCMC section 9.08.210.A, the Public Works Director (“Director”) “shall have sole authority to cut, trim, prune, replace or remove any tree in or any parkway in the City.”  Any interest person may request discretionary removal of a parkway tree by submitting a written application to the Director on a form approved by the CityThe written application shall state the name and address of the applicant, the location of the tree, the reason for the request, and any other information required by the DirectorCCMC section 9.08.210.B. 

 

The Public Works Director shall review the application and supporting documentation to determine whether to approve the removal of the Requested treeIn determining whether any tree in or on the parkway shall be removed or replaced, the Public Works Director shall determine whether the removal or replacement is in the best interest of the City and the public health, safety, and welfare Such determination shall be based on the criteria set forth in either Subsection C.1 or Subsection C.2 as follows: 

 

1.  if any one of the following criteria is met: 

a.  The tree is dead, dying or weakened by disease, age, storm, fire or other injuries so as to pose an existing or potential danger to persons, properties, improvements or other trees; or 

b.  The removal is necessary for construction of a Street improvement project or other public improvement/repair work; or  

c.   The removal is necessary for private improvement or development projectWhere the application for removal is related to a private improvement or development project, see §9.08.215. 

 

2.  If two or more other criteria are met: 

a.  The tree is a known problem species or is otherwise found to be an undesirable species for its location based on tree size relative to available area for tree growth. 

b.  The tree roots are creating extensive and repeated damage to public and/or private infrastructure, including sidewalks, sewer lines, or other utility linesA history of sewer line blockages from tree roots does not alone provide sufficient for tree removal, but rather suggests the need for sewer repair to stop leaks and the accompanying root intrusion that results. 

c.  The tree is creating a public or a private nuisance.  CCMC §9.08.210.C. 

 

The decision of the Director is final, unless appealed by the applicant, a member of the City Council or an interested personCCMC section 9.08.210.E.  The notice of decision shall be prepared by the Director and sent to the applicant and all interested persons with a copy provided to the City CouncilIdAppeals shall be submitted in writing and filed with the City Clerk within ten days after the decision date identified in the notice of decisionIdAn appeal shall include a general statement specifying the basis of the appeal, shall be based on an error in fact or dispute of the findings of the decision, and must be accompanied by supporting evidence substantiating the basis for the appeal.  Id. 

“Appeals shall be heard by the City Council, which shall affirm the decision of the Public Works Director, unless the appellant demonstrates, by substantial evidence, that the decision is based on an error of fact or disputed findingsThe decision of the City Council on an appeal shall be final.”  CCMC §9.08.210.F. 

 

D. Statement of Facts1 

1.  The October 2019 Request 

In October 2019, Petitioner submitted the Request.  The Request asserted that two City-owned Ficus trees located on a City-owned parkway property adjacent to Petitioner’s residential rental property had caused damage to the City-owned street and sidewalk, Petitioner’s concrete wall, and Southern California Gas Company pipes under the street. The Request claimed not only root damage, but danger from falling limbs, and cited CCMC section 9.08.210.C.2.a-c.  AR 1. 

On February 4, 2020, the Director approved Petitioner’s Request.  AR 957.  On February 25, 2020, the Director provided public notice of the decision to remove the two treesAR 13.  

On March 2, 2020, Petitioner’s neighbor, Real Party Jablin, appealed to the City Council.  AR 15.  Jablin stated in his appeal that “the two trees in question are beautiful, mature trees, that have recently undergone a large scale…pruning, and provide both shade and character to our portion of Culver Crest.”  AR 15Jablin asked that any tree removal be deferred until a detailed street repair and replacement plan was presented to residentsAR 15. 

On August 10, 2020, the City Council heard Jablin’s appeal.  AR 958-59.  There were 20 written comments submitted in support of the appealAR 54-99At the hearing’s conclusion, the City Council voted to defer the appeal decision to allow the Director to evaluate alternatives to removing the trees.  AR 959.   

On September 28, 2021, the Director issued a revised determination, developed in coordination with Petitioner, to remove one of the two trees.  AR 262-63, 281-82.   

On October 11, 2021, the public hearing for the appeal was reopened Staff presented the revised determination that would preserve the Northgate/Galvin corner tree and remove the inner Galvin Street tree due to its proximity to Mabus’s concrete wall, which previously had been repaired after some cracking.  The revised determination proposed to eliminate the adjacent curbside parking area on Galvin Street and convert the area into an expanded parkway. The project would significantly lengthen and widen the existing parkway and provide substantially more room for unimpeded tree root growth in the future by removing the sidewalk along Mabus’s property, thus eliminating the potential for future sidewalk damage.  AR 193-94, 210, 359-60. 

At the hearing, neighbors and other persons appeared to oppose Petitioner’s RequestAR 243-56, 269-90, 360-63Petitioner was the only person who supported removal of the treesId. 

At the conclusion of the hearing, the former Director acknowledged that a revised capital project could safely and feasibly save both trees and replace or repair the street, curb and sidewalk that were the subject of the Request.  AR 303-04. The City Council voted unanimously to grant the appeal and preserve both trees, directing the Director to modify and implement the proposed Galvin Street parkway expansion project to save both trees.  AR 960.  The City Council did not adopt written findings memorializing its decision See AR 43. 

 

2. Mabus I 

On December 10, 2021, Petitioner filed the Mabus I petition challenging the City Council’s October 2021 decision. AR 797.   

After a hearing, the court (Judge Strobel) ruled that the City Council failed to comply with Topanga, supra, 11 Cal.3d at 515 and CCMC section 9.08.210 when it failed to issue written findings in support of its decision to reverse the former Director’s determination to approve the RequestThe court ordered the City to set aside its October 11, 2021 decision, reconsider the case in light of the court’s ruling, and adopt written findings as required by Topanga and CCMC section 9.08.210.C and F. AR 955, 970. 

 

3.  The Galvin Street Parkway Project 

In 2022, while Mabus I was pending, the City Council approved funding for the Galvin Street Parkway Project proposed at the October 2021 hearing.  AR 396, 399, 686 As directed by the City Council in October 2021, the Galvin Street Parkway Project was designed to preserve both trees in a manner that would allow for their safe growth. The project would greatly expand the parkway planting area, correct and replace the previously damaged street and curb, and remove the sidewalk adjacent to Petitioner’s property.  IdThe City awarded a $108,000 construction contract for the project in November 2023AR 930. 

 

4The May 8, 2023 Hearing 

The City Council published an agenda for its May 8, 2023 session to renew its decision to grant the appeal of the former Director’s 2019 determination that the two trees should be removedAR 390The written material considered by the City Council at the hearing on appeal included the following:  (1) a May 22, 2023 staff report (AR 682-808); (2) a May 8, 2023 staff report (AR 392-473); (2) an August 10, 2020 staff report (AR 27-44); (3) an October 11, 2021 staff report (AR 210-34); (4) Petitioner’s May 8, 2023 correspondence (AR 506-09); (5) staff's May 22, 2023 Responses to Petitioner’s Objections (AR 724-30); (6) inspection photographs of the Property dated May 13, 2023 (AR 731-37); (7) Petitioner’s May 17, 2023 submittal and additional photographs (AR 738-62); (8) May 22, 2023 staff photos from 2021 (AR 685, 757-62); and (9) a proposed resolution (AR 763-808). 

The May 8, 2023 staff report referred to an April 13, 2023 inspection by a City Arborist on April 13, 2023. AR 692The staff report stated that the Arborist concluded that “there is no evidence of new or repeated damage, or worsening of previous damage.”  AR 692.   The staff report summarized the Arborist’s opinion as based on three factors: (a) asphalt repairs conduct in 2021 showed now evidence of new damage; (b) there were no new cracks in Petitioner’s patio wall, and (c) no additional lifting or damages had occurred in the new or older sections of the sidewalk since 2021AR 692-93. 

The May 8 staff report also summarized the basis for the current Director’s finding that the former Director’s tree removal determination was erroneousThe former Director’s decision was erroneous  because (a) the City Arborist concluded there was no new damage, (b) the existing damage would be repaired by a future project, and (c) the former Director had proposed an alternative plan that would have preserved one of the treesAR 693. 

The City Council heard oral presentations from staff, including the new Director, neighbors, Jablin, Petitioner, and Petitioner’s counselAR 545-69All neighbors, including Jablin, opposed removal of the trees on grounds that the damage had been largely repaired and would be eliminated by the upcoming capital project, and any damage did not create problems or interfere with the sidewalk and parkingAR 885-98. 

Petitioner’s counsel submitted a written comment objecting to the City Council’s reliance on new evidenceAR 506.   

At the hearing, Petitioner’s counsel once again objected to the new evidenceAR 550-51, 556-57.  Members of the public spoke in favor of removing the treesAR 554, 557-60The City Council continued the hearing for two weeks to May 22, 2023 to allow Petitioner to submit evidence to counter to undisclosed new evidenceAR 564-65, 567-68. 

 

5Petitioner’s Additional Evidence 

On May 17, 2023, Petitioner submitted additional photographic evidence of the original and continuing damage to the street, sidewalk, and the Property caused by the trees’ roots.  AR 581-600Petitioner provided 12 photographs of recent damage, along with an annotated map showing where each picture was taken in relation to the two treesAR 588-600Petitioner submitted further evidence showing that the root structure of the trees extended beyond their canopies and under her property and that this had caused damage to her foundation.  AR 648-67.  

 

6The City’s Additional Evidence 

City staff issued a supplemental report of new evidence to support the granting of the appeal. AR 685The report disclosed six photographs of the area taken in 2021 of new asphalt patch repairs (AR 757-62), and 16 new photographs taken on May 13, 2023 (AR 731-37).  

The supplemental staff report discussed the photographs submitted by Petitioner and stated that “[t]he photographs do not show new cracking or root damage.”  AR 685. The report further states that [t]The … photos show no new cracks or damages in those previous [asphalt patch] repairs.” AR 685. The supplement report admitted that Petitioner’s photographs showed new cracks in the asphalt patches but concluded they did not meet the legal definition of “extensive” under the ordinance.  AR 685-86.   

 

7The May 22, 2023 Hearing 

The City Council heard the continued appeal on May 22, 2023. The current Director explained the new evidence added since the May 8, 2023 hearing.  AR 865-66.  He explained that all future root damage to the sidewalk and street in front of Petitioner’s house could be prevented by removing the sidewalk and street entirely: 

 

PUBLIC WORKS DIRECTOR DIMITRI: There is a CIP we are proposing, capital improvement project. [W]e would like to remove that sidewalk, remove a small portion of the roadway pavement, in order to double the size of the parkway to allow the tree roots to continue to grow and thrive, and cause no further damage in the future.  AR 866.  

 

Petitioner and her counsel presented her evidence and objections to overturning the former Director’s tree removal determination.  AR 876-85.   

The four City Council members stated their reasons for granting the appeal and overturning the determination Councilmember Ericksson explained that the key factor was the apparent lack of extensive and repeated damage 

 

COUNCILMEMBER ERIKSSON: …. [W]hat the judge … kicked it back on the last time was that we didn't spell out really why we did the decision we did…. So, for me, it's clearly that what staff says, that the damage is not extensive, which is one of the requirements, and the damage is not repeated, which is another requirement, right?….AR 902.  

 

Councilmember Puza explained that that his vote was based on the apparent lack of extensive and repeated damage, although he also agreed that it would be necessary to remove portions of the sidewalk and street in front of Petitioner’s house because additional future damage was inevitable: 

 

COUNCILMEMBER PUZA: …. …. [T]he damage is minor and there is no evidence of extensive or repeated damage…. [A]nd the proposed capital project would [] preserve both trees in a manner that would allow for their safe growth, expand the parkway, and correct any damaged areas. AR 903.  

 

Councilmember O’Brien admitted that he would probably also want the trees removed if he were in Petitioner’s place, but he nonetheless supported the appeal: 

 

COUNCILMEMBER O'BRIEN: I understand the concern of the homeowner.I think everyone who has a mature tree in their parkway would probably present the same argument and say that it should be removed…”  AR 904.2 

 

The four City Council members voted unanimously to grant Jablin’s appeal, overturn the determination of the former Director, and adopt the Resolution, finding that substantial evidence supported the conclusion that the decision to approve the Request to remove the trees was based on an error or disputed findings.  AR 850.   

 

i8The Resolution 

The Resolution was then executed on May 22, 2023 and became immediately effective.  AR 926-72.  The City Council set forth written findings in the Resolution explaining the basis for the decision under CCMC section 9.08.210.C and F.  AR 926-72.   

The Resolution listed the reasons for the City Council’s determination: 

At a previous City Council meeting in 2021 the former Director acknowledged that both trees could be “safely and feasibly saved by another capital project that that would address street and sidewalk damage.”  AR 929. 

• A budget had been approved for a capital improvement project, the Galvin Street Parkway Expansion, that would remove curbside parking, portions of the sidewalk, and portions of the road in front of Petitioner’s house that would “completely or substantially correct and/or eliminate each of the problems and conditions [with the road and sidewalk] listed by [Mabus] in her 2019 Request.”  AR 930. 

• The City Arborist had inspected the site on April 13, 2023 and determined that there was no evidence of (a) new damage, (b) damage to the asphalt repairs made in 2021, (c) damage to the repairs Petitioner had made to her house in 2019, or (d) additional sidewalk damage or lifting in the last two years.  AR 930-31. 

• The current Director had determined “that the criteria under CCMC 9.08.210.C.2 have not been met and do not exist, and recommends both trees be preserved.”  AR 931. 

• City staff “concluded that the determination of staff, including the Public Works Director and City Arborist, as described in the staff report for the May 8, 2023 public hearing, were accurate and correct; that Petitioner's objection to that determination and conclusion was (and is) unsupported by, and contrary to, the evidence; [and] that there is no evidence that damage to the wall, the sidewalk and the street have repeated, recurred or worsened.….”  AR 932. 

City staff compared Petitioner’s photographs of the site from 2023 with photographs taken by staff in 2021 and determined that “the photographs do not show new cracking or root damage.”  AR 932-33.3 

 

D. Analysis 

Petitioner Mabus challenges the City Council’s decision to uphold Jabon’s appealPetitioner contends that the City Council failed to proceed in the manner required by law and that its decision is not supported by substantial evidence.4 

 

1. Procedural Issues 

Jablin argues that Petitioner overlooked him when she filed Mabus I and did so again when she filed the PetitionShe also ignored his rights when she failed to serve him with her revised 15-page opening brief on July 5, 2024Davis Decl., ¶5Jablin only learned that Marcus had served her revised opening brief when the City’s counsel forwarded a copy to Jablin’s counsel on July 8, 2024 Id To this day, Petitioner has not served Jablin with her revised opening brief Id Petitioner should not be granted the extraordinary relief she seeks when she has failed to satisfy the most basic procedural requirements in this matterRPI Opp. at 8. 

Despite Petitioner’s failure, Jablin has suffered no prejudice and the court will not deny the Petition on this basis.  

 

2. The Action Is Not Time-Barred 

Jablin argues that the court must dismiss the FAP in its entirety based on Mabus’s failure to timely name and serve Jablin as the Real Party-in-Interest.  

 

a. The Action Is Untimely Against Jablin 

Jablin points out that Code of Civil Procedure sections 1094.5 and 1094.6, which apply to this case, have a short 90-day statute of limitations for challenges to adjudicative decisions denying an application for a permit or other entitlement Where the applicable law does not expressly require a written decision or written findings, and there is no provision for reconsideration, the 90-day limitations period begins on the day the decision is announced.  CCP §1094.6(b)After the expiration of the limitations period, all claims are barred The Rutter Group, California Practice Guide, Administrative Law, §§ 16:230, 16:240.   RPI Opp. at 4-5. 

The City made its final decision on May 22, 2023 and adopted the resolution memorializing its decision that same night AR 902-05, 926-72 On August 21, 2023, the City mailed a notice of the Resolution to Petitioner by certified first class mail AR 973-74.  The 90-day limitations period began to run no later than the City’s service on August 21, 2023As such, the limitations period expired on November 19, 2023 While Petitioner did timely file the Petition against Respondent City on August 18, 2023, she did not name Jablin as a Respondent or Real Party until January 16, 2024, and did not serve him until January 21, 2024. Davis Decl., ¶ 3. Thus, Petitioner missed the deadline to add Jablin as a Real Party by almost 60 days.  RPI Opp. at 5. 

Mabus argues that the FAP naming Jablin relates back to the Petition[A]n amendment relates back to the original complaint if the amendment (1) rests on the same general set of facts; (2) involves the same injury; and (3) refers to the same instrumentality. Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP, (2011) 195 Cal.App.4th 265, 276–77.  [T]he allowance of amendment and relation back to avoid the statute of limitations does not depend on whether the parties are technically or substantially changed; rather the inquiry is as to whether the nature of the action is substantially changed. And most of the changes in parties do not change the nature of the action.”  5 Witkin, Cal. Procedure, (4th ed. 1997) Pleading, §1151.  Reply at 8. 

Mabus relies on Garrison v. Board of Directors, (1995) 36 Cal. App. 4th 1670, as modified on denial of reh'g, where an individual petitioner failed to state a claim due to failure to exhaust administrative remediesHe then filed an amended petition after the statute of limitations period had expired, alleging that he was now suing in a representative capacity on behalf of an organization.  The trial court held that his petition was barred by the statute of limitations because the organization had not become a plaintiff until after the statute of limitations period had expired. The appellate court reversed, stating:  

 

California courts have shown a liberal attitude toward allowing amendment of pleadings to avoid the harsh results imposed by statutes of limitations. Thus, proper amendments to an original complaint 'relate back' to the date of the filing of the original complaint, despite the amendments being made after the statute of limitations has expired.  The policy behind statutes of limitations is to put defendants on notice of the need to defend against a claim in time to prepare a fair defense on the merits. This policy is satisfied when recovery under an amended complaint is sought on the same basic set of facts as the original pleading.”  Reply at 9. 

 

Mabus argues that the amendment that added Jablin as a Real Party did not change the general facts at issue, involves the same injury, and the same instrumentality.  In fact, Jablin was identified in the Petition; he just was not named as a party.  Reply at 9. 

Petitioner is wrongAn amended complaint relates back to the original complaint only if it is based on the same general set of facts as the original, seeks recovery against the same defendants for the same injuries, and refers to the same incident Barrington v. A.H. Robbins Co., (1985) 39 Cal.3d 146, 150 Jablin is correct that the FAP does not meet these requirements because it adds him as an entirely new party.  The FAP does not relate back to the filing of the Petition with respect  and is untimely with respect to Jablin. 

 

b. Jablin Is Not an Indispensable Party 

The untimeliness of naming Jablin as Real Party does not end the inquiryHe must be indispensable to the case before dismissal would be required. 

CCP section 389 governs joinder of parties, and there are two types of parties to be joined: “necessary” and “indispensable”CCP section 389(a) sets forth the requirements for determining a necessary party: “A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the person already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.” 

Marcus argues that there is a legitimate question whether Jablin is actually a Real Party, defined in a mandate proceeding as a person or entity with an interest that will be directly affected by the proceeding.  Rudisill v California Coastal Comm'n, (2019) 35 Cal.App.5th 1062, 1072. Jablin has no personal interest that will be directly affected by these proceedings.  He does not own the trees at issue and does not even live on the block where the trees are located.  Reply at 9. 

Despite this argument, there is little doubt that Jablin is a necessary partyHe lives near Marcus and the City Council granted his appeal from the former Director’s decision to remove the trees.  He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may as a practical matter impair or impede his ability to protect that interestJablin is a necessary party, which is why the court ordered Marcus to name him as a Real Party.  

A party found “necessary” pursuant to CCP section (a) may then be found “indispensable” pursuant to (b)County of Imperial v. Superior Court, (“Imperial”) (2007) 152 Cal.App.4th 13, 26.  A determination that a party is necessary is the predicate for a determination of whether the party is indispensableDeltakeeper v. Oakdale Irrigation Dist., (2001) 94 Cal.App.4th 1092, 1100.   

CCP section 389(b) provides: “If a person as described in paragraph (1) or (2) of subdivision (a) cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable.  The factors to be considered by the court include: (1) to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person’s absence will be adequate; (4) whether the plaintiff or crosscomplainant will have an adequate remedy if the action is dismissed for nonjoinder.” 

A necessary party is regarded as indispensable if the court determines, in equity and good conscience, that the action must be dismissed in the party’s absence in light of, inter alia, whether a judgment rendered in the party’s absence will be adequateTG Oceanside, L.P. v. City of Oceanside, (2007) 156 Cal.App.4th 1355, 136566The controlling test for whether a necessary party is also indispensable is whether “the plaintiff seeks some type of affirmative relief which, if granted, would injure or affect the interest of a third person not joinedSave Our Bay v. San Diego United Port District, (“Save Our Bay”) (1996) 42 Cal.App.4th 686, 692In other words, a third party is indispensable if his or her rights must necessarily be affected by the judgmentIdEach of the four factors in subdivision (b) must be considered, but “no factor is determinative or necessarily more persuasive than another.”  Imperial, supra, 152 Cal.App. 4th at 35.   

A failure to join an indispensable party is not a jurisdictional defect in the fundamental sense of jurisdictionThe court has the power to render a decision as to the parties before it in the absence of an indispensable partyIt is for reasons of equity and convenience only that a court will not proceed with a case where it determines that an indispensable party is absent and cannot be joinedSave Our Bay, supra, 42 Cal.App.4th at 693.   

Jablin makes only a perfunctory argument that he is indispensable and fails to sufficiently analyze the appropriate factorsHe argues that the allegations of the FAP and the arguments in Marcus’s opening brief take direct aim at the City Council’s decision granting his appeal. As the appellant before the City Council, Jablin had – and still has – a significant stake in this litigation that will be impaired if the court grants Petitioner’s requested reliefThe trees Jablin has fought to preserve will be destroyed, and his rights under the City’s ordinance will be lost Further, complete relief cannot be granted because he will not be bound by any judgment rendered in his absence RPI Opp. at 7. 

Analysis of the factors show that Jablin is not indispensableIt is true that he filed the administrative appeal and a judgment rendered in his absence might be prejudicial to him. The judgment also cannot really be shaped to avoid that prejudiceIf the City Council decision is reversed and the trees are removed, there is no measure that could lessen his prejudiceHowever, it is also true that Mabus will not have an adequate remedy if the action is dismissed for nonjoinder.  Most important, a judgment rendered in Jablin’s absence will be adequate because the City can be relied upon to protect his interests, which are co-extensiveSee TG Oceanside, L.P. v. City of Oceanside, supra, 156 Cal.App.4th at 136566.   

In sum the FAP is untimely as against Jablin and he is a necessary party, but he is not an indispensable party.  The FAP will not be dismissed for this reason. 

 

3. Mootness 

“Although a case may originally present an existing controversy, if before decision it has, through the acts of the parties or other cause, occurring after commencement of the action, lost that essential character, it becomes a moot case or question which will not be considered by the court.”  Wilson v. Los Angeles County Civil Service Com., (1952) 112 Cal.App.2d 450, 453; Colony Cove Props., LLC v. City of Carson, (2010) 187 Cal.App.4th 1487, 1509"The pivotal question in determining if a case is moot is [] whether the court can grant the plaintiff any effectual relief."  Giles v. Horn, (2002) 100 Cal.App.4th 206, 227 (claim that county failed to make required findings to approve contracts rendered moot by contract extensions which were the operative agreements); Eye Dog Foundation v. State Bd. of Guide Dogs for the Blind, (“Eye Dog Foundation”) (1967) 67 Cal. 2d 536, 541. 

A court should not dismiss a case as moot if a substantial issue remains. Terry v. Civil Serv. Comm’n, (1952) 108 Cal. App. 2d 861.  A case is not moot where, despite the happening of a subsequent event, there remain material questions for the court’s determination that impact a party’s future and contingent legal rights.  Eye Dog Foundation, supra, 67 Cal.3d at 541.  In other words, a case is moot only where the disposition of the case is “a matter of indifference to the parties” -- where disposition of the case will neither benefit the plaintiff nor harm the defendantTurner v. Markham, (1909) 156 Cal. 68, 69.   

Jablin argues that the court should deny Petitioner’s mandamus claim because it is moot The City has implemented a solution to any alleged problems caused by the trees through completion of the Galvin Street Parkway Project, and there is no current justification or need for removing them.  In Wilson & Wilson v. City Council of Redwood City, (2011) 191 Cal.App.4th 1559, 1575, the appellate court held that a landowner’s action for reverse validation regarding a redevelopment project was moot because the project had been completed and thus no effective relief could be granted to the plaintiff As in Wilson, this action is moot. The Galvin Street Parkway Project is complete and, as a result, the trees have adequate space for their roots to grow and the alleged sidewalk, curb, and gutter damage has been addressed. Questions regarding whether the trees should be removed based on the damage identified in 2019 no longer present live issues for decision.   RPI Opp. at 8-9. 

Mabus fails to reply to this mootness argumentWhile completion of the Galvin Street Parking Project is a change in circumstance that significantly undermines Mabus’ case, it is not mootA case can be considered moot (or, by extension, unnecessary) only “when a court ruling can have no practical effect or cannot provide the parties with effective relief.” Californians for Alternatives to Toxics v. California Dept. of Pesticide Reg., (2006) 136 Cal. App. 4th 1049, 1069Neither the court nor Petitioner is required to accept the fact that the City’s remedy has mooted her argument that the two trees should be removed. 

 

4. The Governing Ordinance 

CCMC 9.08.210.C.2 states that the Director must consider three factors for  tree removal requests and must grant the request if any two are satisfied: 

 

C…. In determining whether any tree in or on the parkway shall be removed or replaced, the Public Works Director shall determine whether the removal or replacement is in the best interest of the City and the public health, safety and welfare. Such determination shall be based on the criteria set forth in either Subsection C.1 or Subsection C.2 as follows: 

…. 

2. If two or more other criteria are met: 

a. The tree is a known problem species or is otherwise found to be an undesirable species for its location based on tree size relative to available area for tree growth. 

b. The tree roots are creating extensive and repeated damage to public and/or private infrastructure, including sidewalks, sewer lines, or other utility lines…. 

c. The tree is creating a public or private nuisance.  (emphasis added.)   

 

In relevant part, CCMC section 9.08.210.F states the following procedure for an appeal from the Director’s determination to grant a request to remove parkway trees: 

 

Appeals shall be heard by the City Council, which shall affirm the decision of the Public Works Director, unless the appellant demonstrates, by substantial evidence, that the decision is based on an error in fact or disputed findings. The decision of the City Council on an appeal shall be final.  (emphasis added) 

 

5. The City Council Findings 

Judge Strobel issued a writ of mandate on March 15, 2023, concluding that the City did not make sufficient findings and ordering the City to set aside its decision dated October 11, 2021 and reconsider the case and make findings that satisfy CCMC section 9.08.210.F.  AR 955, 970Judge Strobel did not purport to limit the City’s discretion to take and consider new evidence or impede its discretion in any other waySee id. 

As required by Judge Strobel’s writ, the City Council reconsidered its previous decision from October 2021 by conducting a public hearing spanning two evenings on May 8 and 22, 2023After reconsidering the evidence from the 2020 and 2021 proceedings and new evidence about the current conditions at the site (AR 933), the City Council adopted the Resolution containing written findings explaining the basis for its decisionThe findings address the criteria for removal of trees in CCMC section 9.08.210 C.2.b and explain why Petitioner’s Request failed to satisfy those criteriaAR 934-37. 

The City Council’s findings address the wording of CCMC section 9.08.210.C.2.b, which allows the City to approve a tree removal Request where “[t]he tree roots are creating extensive and repeated damage to public and/or private infrastructure, including sidewalks, sewer lines, or other utility lines.”  (emphasis added).  The City Council examined the ordinance’s use of the present progressive tense in requiring that tree roots “are creating” extensive and repeated damage and interpreted it to mean that removal is not warranted unless the damage is current and ongoing, extensive, and repeated.   

The court must give deference to a legislative body’s interpretation of its own ordinances (City of Walnut Creek v. County of Contra Costa, (1980) 101 Cal.App.3d 1012, 1021), and the City Council’s interpretation is reasonable See De Vries v. Regents of University of California, (2016) 6 Cal.App.5th 574, 590-91 (in ascertaining a term's ordinary meaning, courts often turn to general and legal dictionaries). 

The City Council then explained that the damage Petitioner asserted in her 2019 Request does not warrant removal of the two trees under CCMC section 9.08.210.C.2.b because it is not current and ongoing, extensive, and repeatedThe City Council found that the original damage to the wall, street, curb, and sidewalk had been repaired, the damage had not recurred, and damage would not recur given the (now complete) Galvin Street Parkway Expansion Project’s total overhaul of the site AR 934-37Therefore, the damage is neither current and ongoing nor repeatedAR 937. 

The City Council’s findings further explain why the damage claimed in Mabus’s 2019 Request was not extensive under CCMC section 9.08.210.C.2.b, and what factors were used in defining what the term “extensive” meansAR 935-36The City Council explained that the following criteria are relevant in determining whether damage is extensive: (1) Scope or scale of the damage. Widespread damage that affects a large area or volume is more extensive than localized or limited damage; (2) Severity or intensity of the damage Greater levels of damage or negative impacts are more extensive than minor or superficial damage; (3) Cost or resources required to repair the damage Damage that would take significant time and resources to repair is more extensive than damage that could be quickly or easily fixed; and (4) Functional impact. Damage that seriously impairs a system or process is more extensive than damage that has a minimal functional impactAR 935. 

The City Council found that the damage asserted by Mabus’s Request did not satisfy those criteria because the previous repairs to the sidewalk and asphalt on Galvn Street have allowed continued functionality, the previous damages is located on a scarcely used cul-de-sac and the sidewalk serves only a single parcel, the sidewalk lifting, cracking in the wall, and asphalt damage have not reoccurred since 2021, and any additional repairs can be easily and inexpensively made to minimize damage.  Thus, the root damage from the trees is not extensiveAR 935-36. 

The City Council further found that the current Director has determined that the criteria under CCMC section 9.08.210.C.2.b do not exist as any root damage is neither extensive nor repeatedAR 937The trees can and should be safely saved and do not constitute a nuisance under CMC section 9.08.210.C.2.c.  AR 937. 

The City Council’s findings concluded that the former Director’s decision was based on either “an error in fact or disputed findings under CCMC section 9.08.210.FThe findings explain, with reference to the evidence, the City Council’s conclusionAR 938.  The trees were not and are not creating extensive or repeated damageAR 937Both trees can reasonably be saved with little impact by the already approved $100,000 Galvin Street Parkway ProjectAR 937-38It was and is unclear whether any of the problems with the sidewalk street and wall were caused by the trees as opposed to Mabus’s tree trimming. AR 938Removal would be inconsistent with the City’s Urban Forest Master PlanAR 938.   The findings conclude that there is substantial evidence for the City Council’s decision, including the staff reports, public submissions and comments, and City Councilmember questions, comments, and deliberationAR 939. 

 

6. The City Council Did Not Fail to Proceed in the Manner Required by Law 

Petitioner first notes that it is undisputed that (a) the former Director was correct that the two ficus trees are a known problem species under CCMC section 9.08.210.C.2.a., (b) the former Director’s tree removal determination was supported by substantial evidence, and (c) the cumulative damage caused by the trees’ roots as of 2019 and 2020 was extensive and repeated under CCMC section 9.8.210.C.2.b.5 

Petitioner then makes several arguments why the City Council failed to proceed in the manner required by law. 

First, Mabus argues that the City Council wrongly concluded that the former Director’s alternative proposal was an admission that his initial determination was wrong.  Judge Strobel expressly ruled that no evidence of error or dispute could be found in the former Director’s presentation of an alternative capital improvement project that would allow one tree to be preservedShe interpreted the Director’s revised approval as an alternative to his original determination to remove both trees, but not as superseding his original determination to remove both trees if Council did not affirm the alternative proposal and $80,000 in funding.AR 967Despite this, the Resolution states that the former Director’s alternative capital project is evidence that his initial determination was in error.  AR 937Pet. Op. Br. at 11-12; Reply at 2. 

The Resolution stated 

WHEREAS, at the October 2021, hearing, the (former) Public Works Director, in response to questions from the Council, acknowledged that both trees could be safely and feasibly saved by another capital project that would address street and sidewalk damageAR 929. 

The former Public Works Director reached the [] conclusion [that any root damage is neither extensive nor repeated] at the October 2021 hearing, thus tacitly agreeing that his initial determination on the Request was based on factual error and disputed findings. 

The City Council on that basis, and on the basis of the City Council's contrary findings herein, rejects as error and disputes any inconsistent statements of fact and findings made and adopted by the former Public Works Director in 2020 and 2021. (emphasis added).  AR 937. 

 

The City Council’s finding simply pointed out that the former Director acknowledged that the trees could be safely and feasibly saved by an expanded parkway project, a fact that was relevant to the City Council’s required concern under CCMC section 9.08.210.C.2.b whether the trees’ roots were causing damage on an ongoing basisThe City Council was free to infer from the former Director’s acknowledgement that his determination could be based on factual error or dispute since it could be (and now is) fully corrected by the expanded Galvin Parkway Expansion ProjectEven though she interpreted the former Director’s acknowledgement as an alternative to, and not superseding, his determination for tree removal, nothing in Judge Strobel’s writ prohibited the City Council’s finding of tact agreement of factual errorAR 967Nor is this tacit admission particularly significant to the City Council’s findings and it is not prejudicial because of that lack of significanceSee City Opp. at 16-17. 

Mabus next argues that the Resolution does not conclude that the former Director’s 2020 determination was in error, but instead finds that there is no “new damage” because there is “no evidence that the prior damage has recurred,” and that “no additional sidewalk damage or lifting has occurred over the past two years.”  AR 979The ordinance does not permit the City Council to limit its consideration to new damageNor does it provide any justification where the line between old and new damage should be drawnThe City Council’s decision to consider all damage that existed up until 2021 as irrelevant is contrary to the express language of the ordinance, which requires an examination of the totality of the tree roots’ damageTo allow otherwise would lead to absurd result in which the City Council could manipulate the evidence by arbitrarily excluding years and years of accumulated damage as old and then determining that the evidence of new damage occurring only in the last few months was not extensive or repeatedPet. Op. Br. at 12. 

Mabus is arguing a non-existent horrible by mischaracterizing the City Council’s findingsNothing in CCMC sections 9.08.210.C.2.b or 9.08.210.F imposes any time restriction on the City Council in determining whether a tree removal Request must be grantedCCMC section 9.08.210.C.2.b expressly requires that the damage be ongoing and repeated.  Mabus does not contend that the City Council cannot consider new evidence, and indeed it would make no sense to look at the tree damage historically without considering its current and ongoing nature.   

The City Council found the trees’ roots were not currently creating extensive and repeated damage based on the entirety of evidence, both from the 2020 and 2021 public hearings and from 2023AR 933It separately found that the evidence in 2020 and 2021 alone did not show the damage was extensive and repeatedAR 933.  Under either approach, the City Council considered the 2020 and 2021 evidence. 

The City Council acted within its discretion in considering new evidence in addition to the evidence from 2020 and 2021CCP section 1094.5(e) and (f) so permitSee Voices of the Wetlands v. State Water Resources Control Bd., (2011) 52 Cal.4th 499, 526.  Judge Strobel did not purport to prevent the consideration of new evidence and Petitioner points to nothing in CCMC section 9.08.210.F that does so eitherIn fact, Petitioner presented new evidence at the May 2023 hearings, including photographic evidence of new street and sidewalk cracking, as well as asserted patio and foundation damage that she did not include in her 2019 Request or during the 2020/2021 proceedingsSee City Opp. at 15-16. 

Mabus further argues that the City Council was permitted only to determine if the Director erred in determining that there was extensive and repeated damageThe ordinance does not permit consideration of other factors, nor does the City Council have the latitude to consider themAs Judge Strobel stated: “The court is not persuaded by Respondents’ argument that the ordinance authorized the Director or City Council to apply generic concepts not connected to criteria set forth in Subsections C.1 and C.2.AR 963She also ruled that the City is bound by its ordinance and does not authorize the City Council to order the Director to make a new determination of tree removal, but it could ask the Director for information about alternatives to destroying both treesAR 965-66Petitioner argues that, despite Judge Strobel’s direction, the Resolution repeatedly states that the City Council relies substantially upon the prospect of future repairs to support its conclusion that the past and current damage is not “extensive and repeated.”  AR 930, 934-35, 936-38The City Council’s reliance on future repairs is not authorized by the ordinance and was improper.  Pet. Op. Br. at 12-13. 

The City Council expressly and permissibly addressed this issue.  It explained that CCMC section 9.08.210.C.2.b requires the damage to extensive and repeated.   This means current and ongoingThe City Council found that the original damage to the wall, street, curb and sidewalk was not current and ongoing or repeated due in part to the fact that it would not recur given the (now complete) Galvin Street Parkway Expansion project’s total overhaul of the site AR 934-37The City Council’s findings further explained that the damage claimed in Mabus’ 2019 Request was not extensive under CCMC section 9.08.210.C.2.b.  Relying on specific criteria for the term “extensive, the City Council explained in part that the damage was not extensive because the cost or resources required to repair it were not great AR 935Any future repairs can be easily and inexpensively made to minimize damageAR 935-36.  The City Council could reasonably conclude that future (now completed) repairs were relevant to the ongoing, repeated, and extensive damage requirement of CCMC section 9.08.210.C.2.b. 

Mabus argues that the Resolution explicitly admits that the City Council relied on evidence not in the Administrative RecordFirst, the findings state that the City Council is relying upon the Arborist’s report from April 13, 2023AR 930-31While the original tree removal determination relied on an 11-page Arborist’s report (AR 31-41) that was attached to the staff report for the first appeal, this new April 13, 2023 Arborist’s report was only summarized by an unnamed City stafferAR 435-36 Second, the City Council repeatedly stated that it relied upon the “Galvin Street Parkway Expansion Capital Project” as evidence the damage would be repairedThere is no evidence of this project in the Administrative Record The City Council’s reliance upon evidence not in the Administrative Record was improperPet. Op. Br. at 13. 

As the City responds, neither the City Council’s findings nor the Director’s May 8 report states that the Arborist made a written reportThey simply state that the Arborist inspected the site on April 13, 2023, noted its current condition, and determined that the asphalt had been completely repaired with no evidence of new cracking, that there were no new sidewalk damage or lifting, that in any event the sidewalk was to be completely removed as part of the Galvin Parkway Expansion Project, and that there were no new cracks in Petitioner’s concrete wall following their repair prior to October 2021.  AR 396-97, 435.  To the extent Petitioner’s argument is that the City was precluded from relying on discussions with or information received from the Arborist, she is mistaken Oral reports constitute substantial evidence (Harrington v. City of Davis, (2017) 16 Cal.App.5th 420, 440; City of Rancho Cucamonga, (2006) 135 Cal.App.4th 1377, 1387), as do staff conclusions that recite other evidence (Young v. City of Coronado, (2017) 10 Cal.App.5th 408, 432-33).   See City Opp. at 19.  Moreover, the existence of the Galvin Parkway Expansion Project is in evidenceSee, e.g., AR 396-97 The court also has judicially noticed its completionRJN Ex. G. 

The City Council did not fail to follow the procedure required by law. 

 

7. The City Council Did Not Violate Topanga 

An agency’s quasi-judicial land use decision is subject to the Topanga rule.   See City of Rancho Palos Verdes v. City Council, (1976) 59 Cal.App.3d 869, 885The decision must set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or orderTopanga, supra, 11 Cal.3d at 15.   

Less formality is required for the findings in land use cases, which are sufficient if they inform the parties and the court whether the decision is based on lawful principles.   Id. at 514-16The agency’s findings need not be stated with the precision required in judicial proceedings Craik v. County of Santa Cruz, (“Craik”) (2000) 81 Cal.App.4th 880, 884Where reference to the administrative record informs the parties and reviewing courts of the theory upon which an agency has arrived at its ultimate finding and decision, it has long been recognized that the decision should be upheld if the agency in truth found those facts which as a matter of law are essential to sustain its decision.  Craik v. County of Santa Cruz, (2000) 81 Cal.App.4th 880, 884-85. 

Courts liberally construe findings (Young v. City of Coronado, (2017) 10 Cal.App.5th 408, 421), “strongly presume” them to be correct (Fukuda, supra, 20 Cal.4th at 808), and resolve reasonable doubts in their favor Craik, supra, 81 Cal.App.4th at 884A city council need not make express findings of its own in reach a decision and may incorporate by reference a staff report as its implied findings on the matterMcMillan v. American General Financial Corp., (1976) 60 Cal.App.3d 175, 183-85However, a mere recitation of statutory language, terse statements, and boilerplate findings do not contain sufficient details to bridge the analytic gapGlendale Memorial Hospital & Health Center v. State Dept of Mental health, (2001) 91 Cal.App.4th 129; City of Carmel-by-the-Sea v. Board of Supervisors, (1977) 71 Cal.App.3d 84, 91.  Findings are sufficient if the court “has no trouble under the circumstances discerning the analytic route the administrative agency traveled from evidence to action.  Great Oaks Water Co. v. Santa Clara Valley Water Dist., (2009) 170 Cal.App.4th 956, 971Courts may not substitute their own judgment for that of the agency because they believe a contrary finding would have been equally or more reasonable. City of Fairfield v. Superior Court, (1975) 14 Cal.3d 768, 778-79.  

Mabus weakly argues that the City Council did not comply with its obligation under Topanga to identify that specific evidence and explain why it specifically supported reversal of the Public Works Director’s decisionIf the court “cannot discern the analytic route the city council traveled from evidence to action,” the decision does not comply with Topanga The failure of the City Council to identify this evidence or explain how it proved an error requires reversal.  Pet. Op. Br. at 15. 

The court disagreesThe City Council generally found that “substantial evidence for its decision and findings herein are found in the materials and comments presented at and in connection with the public hearings in 2020, 2021 and May 8, 2023, including without limitation the staff reports and related attachments, neighbors’ and residents’ written submittals and oral comments, staff oral presentations and comments, and City Council members’ questions, comments and deliberations.”  AR 939.   In more specific findings, the City Council addressed the supporting evidencee.g., the former Director’s acknowledgement at the October 2021 hearing that the trees could be safely and feasibly saved (AR 929); the approval of the Galvin Street Parkway Expansion Project (AR 930, 936); the April 13, 2023 inspection by the City Arborist (AR 930931); the April 2023 report from Southern California Gas rebutting Petitioner’s claim of root intrusion into gas pipes (AR 931, 936); the May 8, 2023 staff report (AR 931); City staff’s responses to correspondence from Petitioner’s counsel (AR  931-32); photographs from 2021 and photographs submitted in May 2023 by Petitioner’s counsel (AR 932-33); Petitioner’s 2019 Request (AR 926); the May 8 and May 22, 2023 staff reports (AR 931) and testimony at the May 8th and 22nd hearings (AR 932-33).  Such references to the record are sufficient to discern the City Council’s analytic route.   

 

8. The City Council’s Findings Are Supported by Substantial Evidence 

Mabus argues that the evidence consists of: the original Arborist’s report and former Director’s tree removal determination, along with 21 photographs in support (AR 1-12); (b) the six photographs of new asphalt patch repairs to the street and sidewalk taken by the City in March 2021 (AR 757-62); (c) the 16 photographs of the site taken by City staffers on May 13, 2023 (AR 731-37); (d) the observations of City staff on May 16, 2023, presented in the May 22, 2023 staff report (AR 684-85); and (e) the summary of the Arborist’s April 13, 2023 report by City staff in the May 8, 2023 staff report (AR 692-93).  Pet. Op. Br. at 13-14. 

Petitioner argues that, while the observations of the staff and the summary of the Arborist’s report state that there is no new damage or cracks, this cannot be considered as substantial evidence that the former Director’s determination was in errorThese statements are clearly contradicted by unchallenged photographic evidence showing extensive accumulated damage resulting from years of root pressureAR 733, 760The photographs show that cracks had formed in all the new asphalt patches in just two years from 2021 to 2023Compare AR 757-60 to 589-91 and AR 761-62 to 751-53 They also show that the new portion of the sidewalk installed in 2021 at the same time as the asphalt repairs has already lifted and shifted at least an inch in several placesAR 748-49 and 731-32A photograph of a previously flat junction between the old concrete gutter and a new asphalt patch on the street shows that the roots have pushed up and created a ridge several inches high AR 733.  Pet. Op. Br. at 14. 

According to Mabus, the reports and the Resolution admit that these statements are not accurateThe May 22, 2023 staff report admits that junction between the gutter and the asphalt patch was raised by underground root activityAR 685The May 8, 2023 staff report admits that there is limited damage to the new repairsAR 694And the Resolution repeatedly admits there is new damage but proposes that it will be corrected by future repairsAR 934-38.  Pet. Op. Br. at 14. 

Mabus incorrectly relies on the substantial nature of her evidence rather than whether there is substantial evidence to support the City Council’s findingsIn reply, Mabus sets forth the proper standard. Where there is conflicting evidence of a “basic fact,” the court is only bound to accept the municipality’s determination of that fact if it determines that a reasonable person looking at the same evidence could reach the same conclusionCity of Fontana v. California Dept. of Tax & Fee Admin., (2017) 17 Cal. App. 5th 899, 916-936The court must consider the quality of the evidence on both sides of the fact questionDoe v. University of Southern Calif., (2016) 246 CA4th 221, 248-53 (substantial evidence “is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value”)Where the only evidence in support of an agency’s factual determination is of low quality and is contradicted by better, more reliable evidence, the court is not bound to accept the agency’s version of events. Gregory v. State Bd. of Control, (1999) 73 CA4th 584, 596-598 (hearsay and testimony of witness offering only conclusions was not sufficient to support the agency’s factual determination)Reply at 7. 

Applying this standard, the City’s evidence is substantialAs the City argues, the City Council’s findings that the Request failed to satisfy the criteria required by CCMC section 9.08.210.C.2.b, and that the former Director’s decision was based on error and disputed findings under CCMC section 9.08.210.F, are supported by substantial evidence, both from the proceedings in 2020 and 2021, and from the reconsideration proceedings in May 2023.  This evidence includes the following: (a) the damage claimed in Petitioner’s 2019 Request had been adequately repaired and had not reoccurred in the past two years (AR 396-98 (May 8, 2023 staff report); AR 865 (May 22 staff testimony); (b) the damage was not likely to recur, especially given the (now completed) Galvin Parkway Expansion Project (AR 396-97, 864-67, 870 (May 22 RPI Jablin testimony); see also AR 884 (admission by Petitioner’s counsel that the Galvin Parkway Expansion Project would solve the problem for a few years)); (c) Petitioner’s nuisance-related claims in her 2019 Request asserting falling limbs and gas line damage were unfounded (AR 398); (d) the damage asserted to the sidewalk and roadway was limited in size and impact and relatively minor (AR 398, 865); and (e) Petitioner’s photographs did not demonstrate ongoing, repeated, or extensive damage or otherwise rebut staff’s conclusions. (AR 685 (May 22, 2023 staff report).6   

This is substantial evidence. 

 

E. Conclusion 

The Petition is deniedThe City’s counsel is ordered to prepare a proposed judgment and writ of mandate, serve them on both other counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment and writ along with a declaration stating the existence/non-existence of any unresolved objections.  An OSC re: judgment is set for September 17, 2024 at 9:30 a.m. 


Case Number: 24STCP01666    Hearing Date: August 6, 2024    Dept: 85

Larion Krayzman v. The State Bar of California, Traci Morgan aka Pablo Mendez, et al., 24STCP01666  

 

Defendant/Respondent The State Bar of California (“State Bar”) moves for a declaration that Petitioner Larion Krayzman (“Krayzman”) is a vexatious litigant, to require him to post security, and for a pre-filing order.   

The court has read and considered the moving papers, response and opposition, reply, and sur-reply, and renders the following tentative decision 

A. Statement of the Case 

1.  Petition for Writ of Mandate 

Petitioner Krayzman filed the Complaint (“Petition”) on May 23, 2024, alleging causes of action against State Bar and Traci Morgan a/k/a Pablo Mendez (“Morgan”) for (1) writ of mandate, (2) defamation per se, and (3) intentional infliction of emotional distressThe Petition alleges in pertinent part as follows. 

Petitioner Krayzman is not an attorney, nor has he practiced lawCompl., ¶8Petitioner has only ever provided paralegal servicesCompl., ¶8.   

In March 2023, Defendant Morgan made defamatory statements to State Bar and other third parties, claiming that Petitioner was practicing law without a license and was a criminal and a thiefCompl., ¶6.   

In response to Morgan’s false statements, State Bar launched an investigation of KrayzmanCompl., ¶7State Bar’s investigation was not proper and impartialCompl.,7, 8State Bar jumped to a false conclusion and found that Krayzman was practicing law without a licenseCompl., ¶10State Bar issued and published on its website a cease-and-desist order against KrazymanCompl., ¶10. 

For all causes of action, Petitioner seeks general damages.  Petitioner seeks mandamus and injunctive relief requiring State Bar to withdraw the cease-and-desist order, remove all public information regarding the false and fraudulent cease-and-desist order, and make a statement correcting any prior remarks against Petitioner’s interests.   

 

2.  Course of Proceedings 

On June 17, 2024, A proof of service filed on June 17, 2024 shows electronic service of an Amendment to the Complaint on Defendant Morgan.   

A Notice of Acknowledgement and Receipt of the Complaint/Petition and Summons is on file executed by Respondent State Bar on June 18, 2024.   

On July 31, 2024, the court denied a Notice of Related Cases seeking to relate this case to 24AVR00957.   

 

B.  Applicable Law 

A vexatious litigant means a person who does any of the following:  

 

(1) in the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing;  

 

(2) After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined. 

 

(3) In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delayCCP1 §391(b).  

  

In any litigation in any court of this state, and at any time until final judgment is entered, a defendant may move the court for an order that the plaintiff is a vexatious litigant who should be required to furnish security§391.1The motion must be supported by a showing that the plaintiff is a vexatious litigant and there is not a reasonable probability that he will prevail in the litigation against the moving defendantId. 

“Litigation” means any civil action or proceeding, commenced, maintained or pending in any state or federal court§391(a)“Manifestly, ‘any civil action or proceeding’ includes any appeal or writ proceedingOf course, ‘any state or federal court’ includes the California Court of Appeal.” McColm v. Westwood Park Ass'n, (1998) 62 Cal.App.4th 1211, 1216; Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1170.   

For purposes of section 391(b)(1), a final determination adverse to the plaintiff includes a voluntary dismissal without prejudiceTokerud v. Capitolbank Sacramento, (1995) 38 Cal.App.4th 775, 779“An action which is ultimately dismissed by the plaintiff, with or without prejudice, is nevertheless a burden on the target of the litigation and the judicial system, albeit less of a burden than if the matter had proceeded to trial. A party who repeatedly files baseless actions only to dismiss them is no less vexatious than the party who follows the actions through to completion. The difference is one of degree, not kind.”  Id. at 779.   

For purposes of section 391(b)(1), the statutory seven-year period is measured from the date the motion to have plaintiff declared a vexatious litigant is filedStolz v. Bank of America, (1993) 15 Cal.App.4th 217, 220. The fact that the litigation was commenced outside of the seven-year window does not necessarily exclude it from consideration if it was subsequently “prosecuted” or “maintained” by plaintiff in pro per within the windowId., at 225Nor does it matter if a plaintiff in pro per subsequently substitutes in counsel, so long as plaintiff maintained the action in pro per for some period during the seven-year window.  Id.   

Security is defined as “an undertaking to assure payment, to the party for whose benefit the undertaking is required to be furnished, of the party's reasonable expenses, including attorney's fees and not limited to taxable costs, incurred in or in connection with a litigation instituted, caused to be instituted, or maintained or caused to be maintained by a vexatious litigant.”  §391(c). 

Section 391.7 provides an additional means to counter misuse of the court system by vexatious litigants by authorizing the court to issue a prefiling order that prevents a vexatious litigant from filing new litigation pro per without permission of the presiding judgeShalant v. Girardi, (2011) 51 Cal.4th 1164, 1170The presiding judge shall permit the new pro per litigation only if it appears that the litigation has merit and has not been filed for harassment or delayThe presiding judge may condition the filing of litigation upon furnishing security as provided in section 391.3.  Id. 

The vexatious litigant statutes are intended “to require a person found to be a vexatious litigant to put up security for the reasonable expenses of a defendant who becomes the target of one of these obsessive and persistent litigants whose conduct can cause serious financial results to the unfortunate object of his attack.”  First Western Development Corp. v. Superior Court, (1989) 212 Cal.App.3d 860, 867“The constant suer becomes a serious problem to others than the defendant he dogsBy clogging court calendars, he causes real detriment to those who have legitimate controversies to be determined, and to the taxpayers who must provide the courts.”  Taliaferro v. Hoogs, (1965) 237 Cal.App.2d 73, 74. 

“The trial court exercises its discretion in determining whether a person is a vexatious litigant Review of the order is accordingly limited and the Court of Appeal will uphold the ruling if it is supported by substantial evidenceLikewise, a court's decision that a vexatious litigant does not have a reasonable chance of success in the action is based on an evaluative judgment in which the court weighs the evidence. If there is any substantial evidence to support the court's determination, it will be upheld.”  Singh v. Lipworth, (2014) 227 Cal.App.4th 813, 828.   

 

C. Statement of Facts 

On September 12, 2022, Morgan submitted a complaint to State Bar (Case No. 22-NA-11968) regarding Petitioner’s unauthorized practice of law Sorensen Decl., ¶2, Ex. AIn the complaint, Morgan indicated that, on September 3, 2022, she responded to Petitioner’s advertisement on Craigslist.com for “Experienced Civil Litigation Paralegal” services, seeking assistance with drafting a default judgment in a federal civil case Sorensen Decl., ¶2, Ex. A.  

Petitioner responded to Morgan’s inquiry the same day, indicating he could review the complaint and draft the default in exchange for an advanced payment of $500 Sorensen Decl., ¶3He also stated he could assist Morgan with enforcing the judgment once entered by the court Id. 

Morgan described the work she needed performed, including retracting a lis pendens, preparing a writ to garnish wages and other income, request arrears, add requirements to a default judgment, and other legal work Sorensen Decl., ¶4.  Morgan also asked whether she could file a claim with the other party’s insurance, whether she could pursue certain claims in criminal court, and whether she needed to include a statement regarding interest and penalties accruing after judgment Sorensen Decl., ¶4. Petitioner provided Morgan advice regarding the default judgment process and interpretation of timelines set forth by the Code of Civil Procedure Sorensen Decl., ¶5.  Notably, Petitioner’s communications to Morgan were silent whether he provided paralegal services under the supervision of a lawyer.  Sorensen Decl., ¶5. 

On January 5, 2024, Colie Dillon (“Dillon”), the State Bar investigator assigned to this matter, issued a letter of inquiry to Petitioner outlining the allegations raised against him by Morgan and requesting a response. Sorensen Decl., ¶7.  In the letter, Dillon requested that Petitioner indicate whether he was providing services under the supervision of a lawyer Sorensen Decl., ¶7, Ex. B.  

On January 5, 2023, Petitioner responded that Morgan contacted him to assist her with a default judgment, and that she refused to respond any further once he conducted research.   Sorensen Decl., ¶8.  Petitioner also indicated he never provided Morgan with any legal advice and never represented to her that he was an attorney Id.  Petitioner’s response tacitly affirmed that he offered to review and draft legal documents on behalf of Morgan IdFurthermore, Petitioner did not address whether he provided services under the supervision of a lawyer.  Id., Ex. C.  

Over six months later, and in consideration of the evidence gathered during investigation, State Bar concluded that Petitioner had engaged in the unauthorized practice of law Sorensen Decl., ¶9.  On March 27, 2023, State Bar counsel prepared and issued a cease-and-desist letter to Petitioner. Id., Ex. D.  The letter detailed the legal implications of engaging in the unauthorized practice of law in violation of Business & Professions (“Bus. & Prof.”) Code section 6126, including penalties applicable to violations by paralegals, legal document assistants, and immigration consultants Id., Ex. D.  The letter placed Petitioner on notice that State Bar deemed him as having engaged in the unauthorized practice of law and ordered him to immediately cease and desist from such activities IdThe letter noted that should Petitioner continue to violate applicable laws, State Bar “may take additional appropriate action to ensure [Petitioner’s] compliance with these laws and to protect the public.” Id 

As part of its practice of notifying the public regarding the unauthorized practice of law, State Bar posted notice of the cease-and-desist letter on its website and on social media. Sorensen Decl., ¶10.  The letter itself was not publicly posted IdRather, the published notice provides only the name of the respondent, the county in which he/she resides, and the fact that a cease-and-desist letter was sent on a specified date Id.   The publication of the notice is meant to serve as a warning that certain services or actions may violate the law and constitute the unauthorized practice of law. Id.   

Petitioner responded to the cease-and-desist letter on October 9, 2023 Sorensen Decl., ¶10, Ex. E In his response, Petitioner asserted that he is a registered Legal Document Assistant with the County of Los Angeles and that he never represented to Morgan that he is an attorney IdMorgan requested assistance in preparing a default judgment in federal court, she sent him a deposit, he requested additional information to complete the assignment, and Morgan never responded.  Id.  State Bar issued a decision based on a few emails without him ever doing any actual work Id.  Petitioner indicated that he was denied a job because the firm to which he applied discovered the investigation on the State Bar’s website Id.  Petitioner demanded that State Bar set aside the cease-and-desist letter and compensate him $75,000 for damages.  Id. 

 

D. Analysis 

Respondent State Bar moves for an order deeming Petitioner Krayzman as a vexatious litigant pursuant to CCP section 319(b)(1).   

 

1. Petitioner’s Response 

Petitioner Krayzman initially responded to State Bar’s motion in a July 29, 2024 filing that asked for a continuance of the hearing to no earlier than October 15, 2024.  He argued that he needed additional time to gather evidence, was making an ongoing effort to secure legal counsel, needed time for legal research of the vexatious litigant issue, and State Bar would suffer no prejudice. 

In response, State Bar argues that Petitioner chose not to timely oppose the vexatious litigant motion but instead filed yet another lawsuit against MorganDespite finding the time to litigate, he failed to file a substantive opposition to the vexatious litigant motion and instead improperly requests a 70-day continuance Resp. at 3.   

Petitioner has not shown good cause for a continuanceWhile he claims he needs more time to gather evidence, he conducted almost all the litigation that is the subject of the motionTherefore, he should know the facts and possess the relevant documentation  Petitioner indicates that he is attempting to secure legal representation, but he offers no details regarding such efforts. His contention that he needs more time to conduct legal research is not supported by any factsHe should already be familiar with the previous lawsuitsAs for rebutting State Bar’s arguments that he has no reasonable prospect of prevailing in this action, State Bar points out that Petitioner certified that he reasonable inquired on the legal merit and evidentiary support of his lawsuit before filing itSee CCP §128.7Resp. at 7. 

As for prejudice, State Bar argues that Petitioner ignores that the very “purpose of the vexatious litigant statutes ‘is to address the problem created by the persistent and obsessive litigant who constantly has pending a number of groundless actions and whose conduct causes serious financial results to the unfortunate objects of his or her attacks and places an unreasonable burden on the courts.’”  In re Kinney, (2011) 201 Cal.App.4th 951, 957–58 Delaying the hearing on the vexatious litigant motion would allow Petitioner to continue to file new actions, just as he did after State Bar filed its motionResp. at 7.  Despite the lack of showing of good cause, and in recognition that Petitioner is pro per, State Bar is amenable to a continuing the hearing to another date this August  Resp. at 3.   

The court also would have been amendable to a continuance for Petitioner to prepare but for two pointsFirst, Petitioner found the time to file a new lawsuit against Morgan after this motion was filed, thereby showing that he had sufficient time and simply allocated it to another legal taskSecond, Petitioner not only filed a response seeking a continuance, he also filed an opposition and an objection to State Bar’s reply, which functions as a sur-reply.2  If Petitioner can file an opposition and sur-reply, he does not need more time. 

The request for a continuance is denied. 

 

2. Litigation in the Last Seven Years  

State Bar presents the following evidence concerning Petitioner’s commencement, prosecution, or maintenance in pro per of at least five litigations other than in small claims court that have finally been determined adverse to him§391(a).3  State Bar notes that Petitioner has an extensive litigation history and has filed 57 cases in CaliforniaJacobs Decl., ¶10.  In the last seven years, he has brought at least 11 actions in pro per as follows: 

  1. On October 26, 2020, Petitioner filed Krayzman v. Levin, et al., 20VECV01237The action was voluntarily dismissed by Petitioner on October 11, 2022RJN Exs. 1-3.   

  1. On September 9, 2020, Petitioner filed Krayzman v. Hacker, et al., 20VECV01008The action was voluntarily dismissed by Petitioner on May 6, 2024RJN Exs. 4-6.  

  1. On August 27, 2020, Petitioner filed Krayzman v. Amberburg, et al., 20VCEV00953The action was voluntarily dismissed by Petitioner on September 30, 2020RJN Exs. 7-9. 

  1. On August 24, 2020, Petitioner filed Krayzman v. Troschichiy, et al., 20VECV00938The action was voluntarily dismissed by Petitioner on September 16, 2020RJN Exs. 10-12. 

  1. On July 16, 2020, Petitioner filed Krazyman v. Hacker, 20VER00947.  The action was dismissed by court order on August 7, 2020RJN, Exs. 13-15. 

  1. On June 18, 2020, Petitioner filed Krayzman v. Hacker, 20CHCP00146The action was voluntarily dismissed by Petitioner on May 6, 2024 RJN Exs. 16-18. 

  1. On October 13, 2016, Petitioner filed Krazyman v. Barnes, 16N18603The action was dismissed by court order on November 27, 2017RJN Ex. 19. 

  1. On October 13, 2016, Petitioner filed Krazyman v. Jackson, 16N18602The action was dismissed by court order on October 18, 2019RJN Ex. 20. 

  1. On March 16, 2016, Petitioner filed Krazyman v. Margo, 16N03944The action was dismissed by court order on March 1, 2019RJN Ex. 21. 

  1. On March 16, 2016, Petitioner filed Krazyman v. Winston, RG16807902The action was dismissed by court order on July 5, 2017RJN Exs. 22-24. 

  1. On March 15, 2016, Petitioner filed Krazyman v. Livingston, CIVDS1603895The action was dismissed by court order on June 27, 2018RJN, Exs. 25-26. 

 

State Bar argues Petitioner filed each of these 11 cases, and each was terminated by voluntary or court-ordered dismissalAlthough Petitioner obtained counsel at some point in a few of the cases, he maintained them in pro per for a substantial period during the relevant seven-year time frame.   

Petitioner addresses each of the 11 cases: 

Krayzman v. Levin, et al., 20VECV01237.  The action was voluntarily dismissed by Petitioner on October 11, 2022RJN Exs. 1-3He argues that his attorney recommended that he dismiss this case because it was related to his fraudulent conveyance action against Ron Hacker, his former employer, against whom he obtained a 200K plus judgmentOpp. at 3.4 

Krayzman v. Hacker, et al., 20VECV01008.  The action was voluntarily dismissed by Petitioner on May 6, 2024RJN Exs. 4-6 Petitioner argues that the case is related to Krayzman v. Hacker, 20CHCP00146 regarding fraudulent conveyance and will be refiled by an attorney for Petitioner.  It was voluntarily dismissed and cannot be considered a final determination that counts toward the vexatious litigant criteria. 

Krayzman v. Amberburg, et al., 20VCEV00953.  The action was voluntarily dismissed by Petitioner on September 30, 2020RJN Exs. 7-9.  Petitioner argues that he worked for a Russian-speaking attorney who did not pay him in fullThe case was voluntarily dismissed and cannot be considered a final determination that counts toward the vexatious litigant criteria. 

Krayzman v. Troschichiy, et al., 20VECV00938.  The action was voluntarily dismissed by Petitioner on September 16, 2020RJN Exs. 10-12.  Petitioner argues that he worked for a Russian-speaking attorney who did not pay him in fullThe attorney eventually paid him his last job salaryThe case was voluntarily dismissed and cannot be considered a final determination that counts toward the vexatious litigant criteria. 

Krazyman v. Hacker, 20VER00947The action was dismissed by court order on August 7, 2020RJN, Exs. 13-15.  Petitioner argues that he was unable to access this case number in the court’s records but it is associated with the judgment in Krazyman v. LJ Assets, LLCThe case was voluntarily dismissed and cannot be considered a final determination that counts toward the vexatious litigant criteria. 

Krayzman v. Hacker, 20CHCP00146The action was voluntarily dismissed by Petitioner on May 6, 2024RJN Exs. 16-18.  Petitioner argues that Hacker is his judgment debtor who owes him more than 200K from the judgment in Krazyman v. LJ Assets, LLC.  Hacker operated several businesses under aliases and refused to pay the judgmentPetitioner’s attorney will refile the case next month.  The case was voluntarily dismissed and cannot be considered a final determination that counts toward the vexatious litigant criteria. 

Krazyman v. Barnes, 16N18603The action was dismissed by court order on November 27, 2017RJN Ex. 19.  Petitioner argues that this case is outside the seven-year periodIt was a collections case and he believes that he and the defendant came to an agreementThe case was voluntarily dismissed and cannot be considered a final determination that counts toward the vexatious litigant criteria. 

Krazyman v. Jackson, 16N18602The action was dismissed by court order on October 18, 2019RJN Ex. 20.  Petitioner argues that this case is outside the seven-year periodIt was a collections case and Petitioner could not locate the defendant’s address for service of processThe case was voluntarily dismissed and cannot be considered a final determination that counts toward the vexatious litigant criteria. 

Krazyman v. Margo, 16N03944The action was dismissed by court order on March 1, 2019RJN Ex. 21.  Petitioner argues that this case is outside the seven-year periodIt was a collections case and Petitioner could not locate the defendant’s address for service of processThe case was voluntarily dismissed and cannot be considered a final determination that counts toward the vexatious litigant criteria. 

Krazyman v. Winston, RG16807902The action was dismissed by court order on July 5, 2017RJN Exs. 22-24.  Petitioner argues that this case is outside the seven-year periodIt was a collections case and Petitioner could not locate the defendant’s address for service of processThe case was voluntarily dismissed and cannot be considered a final determination that counts toward the vexatious litigant criteria. 

Krazyman v. Livingston, CIVDS1603895The action was dismissed by court order on June 27, 2018RJN, Exs. 25-26.  Petitioner argues that this case is outside the seven-year periodIt was a collections case and Petitioner believes the case settledThe case was voluntarily dismissed and cannot be considered a final determination that counts toward the vexatious litigant criteria. 

From this recitation, Petitioner concludes that he does not meet the criteria of five litigations finally determined adverselyOpp. at 3.  

He is wrongAs State Bar argues, Petitioner voluntarily dismissed only five of the 11 casesRJN Exs. 2, 5, 8, 11, and 17.  The other six cases were dismissed by court order RJN Exs. 14, 19, 20, 21, 23, and 26.  Reply at 5Moreover, a final determination adverse to the plaintiff includes a voluntary dismissal without prejudice for purposes of CCP section 391(b)(1)Tokerud v. Capitolbank Sacramento, supra, 38 Cal.App.4th at 779“An action which is ultimately dismissed by the plaintiff, with or without prejudice, is nevertheless a burden on the target of the litigation and the judicial system, albeit less of a burden than if the matter had proceeded to trial. A party who repeatedly files baseless actions only to dismiss them is no less vexatious than the party who follows the actions through to completion. The difference is one of degree, not kind.”  Id. at 779.  Petitioner’s citation in sur-reply of Holcomb v. U.S. Bank N.A., (2004) 129 Cal.App.4th 1494, 1503, does not support his position that “strategic” voluntary dismissals do not show lack of merit. Sur-Reply at 3.   

Petitioner’s suggestion that Krazyman v. Barnes, Krazyman v. Margo, Krazyman v. Winston, and Krazyman v. Livingston are outside the seven-year period also is incorrectFor purposes of CCP section 391(b)(1), the statutory seven-year period is measured from the date the motion to have plaintiff declared a vexatious litigant is filedThe fact that the litigation was commenced outside of the seven-year window does not necessarily exclude it from consideration if it was subsequently prosecuted or maintained by the plaintiff in pro per within the windowStolz v. Bank of America, supra, 15 Cal.App.4th at 220 These four cases wereSee Reply at 8-9. 

Finally, Petitioner states that in Krayzman v. Troschichiy, Krazyman v. Barnes, and Krazyman v. Livingston he either received some payment or the case settledIf this were true, the court would expect the dismissals to be with prejudiceHowever, each of the voluntary Requests for Dismissal filed by Petitioner reflect that box 2a on page 2 of the dismissal is checked attesting that Petitioner is “not recovering anything of value by this action.”  RJN Exs. 2, 5, 8, 11 and 17.  Nor do any of the case dockets reflect the filing of a Notice of Settlement as required by California Rule of Court Rule 3.1385.  RJN Exs. 3, 6, 9, 12, 15, 18, 19, 20, 21, 24 and 26.  These cases count toward the adverse determination rule. 

Petitioner meets the definition of a “vexatious litigant” in section 391(a). 

 

3. Petitioner Has No Reasonable Probability of Prevailing 

To compel Petitioner to post security, State Bar must show there is no reasonable probability that he will prevail in this case §391.1. 

State Bar argues that Petitioner’s tort claims (defamation and intentional infliction of emotional distress) against it are barred by the litigation privilege of Civil Code §47(b) (“section 47”).  Section 47 bars the tort claims both because the publication of the cease-and-desist notice is privileged as an official act of the State Bar and because it was issued as part of State Board’s investigation, which is an official proceedingMot. at 9. 

First, section 47(a), provides that a publication is privileged if it is made in “the proper discharge of an official duty.” This provision “confers privileged status upon any statement made by a public official in the course of discharging his [or her] official duties.” Maranatha Corrections, LLC v. Department of Corrections & Rehabilitation, (2008) 158 Cal.App.4th 1075, 1087.  “Because a public official’s duty includes the duty to keep the public informed of his or her management of the public business, press releases, press conferences and other public statements by such officials are covered by the ‘official duty’ privilege, although similar statements by private litigants are not covered by the litigation privilege.”  Id. at. 1089.  Mot. at 10. 

Section 47(a) applies because the crux of Petitioner’s complaint is for State Bar’s online publication of notice of the cease-and-desist letter issued to him on March 27, 2023. The State Bar is statutorily charged with investigating unauthorized practice of law, and its publication of the cease-and-desist notice is in furtherance of that statutory charge and its mission to protect the public Bus. & Prof. Code §§ 6044(b) (authorizing Chief Trial Counsel to investigate unauthorized practice of law), 6001.1 (“[p]rotection of the public” is State Bar’s “highest priority”). The publication was made by State Bar in the course of discharging its official duties, as required to invoke section 47(a)’s privilege Mot. at 11. 

Second, the litigation privilege in Civil Code section 47(b) confers a privilege for a “publication or broadcast” made as part of a legislative, judicial, or other “official proceeding authorized by law.” “The litigation privilege is absolute; it applies, if at all, regardless whether the communication was made with malice or the intent to harm.” Kashian v. Harriman, (2002) 98 Cal.App.4th 892, 913 The privilege “applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” Silberg v. Anderson, (1990) 50 Cal.3d 205, 212 The privilege extends to “prelitigation communication” (Rubin v. Green, (1993) 4 Cal.4th 1187, 1194), including communications “in preparation for the sending of a complaint” to law enforcement (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, (1996) 47 Cal.App.4th 777, 783). “[T]he absolute privilege established by section 47(b) serves the important public policy of assuring free access to the courts and other official proceedings It is intended to ‘assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing.’” Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360 Mot. at 11. 

State Bar’s actions taken in connection with its investigation and its publication of the notice regarding the cease-and-desist letter are protected by section 47(b) Informal complaints to the State Bar are part of ‘official proceedings’ protected by Civil Code section 47 [subdivision (b)]”, as are “State Bar investigations and hearings,” including actions that are “logically related to the completion of the investigation[.]”  Lebbos v. State Bar, (1985) 165 Cal.App.3d 656, 668-69Petitioner’s allegations challenging the State Bar’s investigation and its posting of the notice are unquestionably privileged under subdivision (b) Mot. at 12.5 

The court agreesThe privilege bars Petitioner’s claims for defamation and infliction of emotional distress. Rosenthal, supra, 229 Cal.App.3d at 74 There is no reasonable probability that Petitioner will prevail See Manlin v. Milner, (2022) 82 Cal.App.5th 1004, 1021 (“A plaintiff cannot establish a probability of prevailing if the litigation privilege precludes a defendant’s liability on the claims.”). 

State Bar notes that Petitioner’s traditional mandamus claim is premised on the online publication of a “false and fraudulent Cease and Desist Order.”  Compl., ¶12.  State Bar notes that the publication is neither false nor fraudulent because it merely is a notice that a cease-and-desist order has been issued to Petitioner, which is a true fact 

 In any event, a traditional writ of mandate under CCP section 1085 is the method of compelling the performance of a legal, ministerial dutyPomona Police Officers’ Assn. v. City of Pomona, (1997) 58 Cal.App.4th 578, 583-84Generally, mandamus will lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has a duty to perform, and (3) the petitioner has a clear and beneficial right to performanceId. at 584 (internal citations omitted)Whether a statute imposes a ministerial duty for which mandamus is available, or a mere obligation to perform a discretionary function, is a question of statutory interpretationAIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, (2011) 197 Cal.App.4th 693, 701. 

A ministerial act is one that is performed by a public officer “without regard to his or her own judgment or opinion concerning the propriety of such act.”  Ellena v. Department of Insurance, (2014) 230 Cal.App.4th 198, 205It is “essentially automatic based on whether certain fixed standards and objective measures have been met.”  Sustainability of Parks, Recycling & Wildlife Legal Defense Fund v. County of Solano Dept. of Resource Mgmt., (2008) 167 Cal.App.4th 1350, 1359Petitioner has not, and cannot identify a ministerial duty that State Bar violated in publishing the cease-and-desist notice  

Where there is no ministerial duty, judicial review is governed by an abuse of discretion standard and limited to an examination whether the agency’s actions were arbitrary, capricious, or entirely lacking in evidentiary support, or whether it did not follow the procedure and give the notices required by lawPomona Police Officers’ Assn. v. City of Pomona, (1997) 58 Cal.App.4th 578, 583-84.   

State Bar acknowledges that mandamus can be used to challenge agency discretionary action as an abuse of discretion, but Petitioner cannot satisfy the abuse of discretion standard of arbitrary and capriciousFollowing an investigation—including a review of the investigative file, Morgan’s complaint, correspondence between Morgan and Petitioner and between State Bar and Petitioner, State Bar decided to issue a cease-and-desist letter regarding Petitioner’s unauthorized practice of law Sorensen Decl., ¶9 The conclusion of unauthorized practice of law was based on Petitioner advertising himself as an “experienced civil litigation paralegal,” his offer to review legal documents and prepare a default judgment on behalf of Morgan, and his provision of legal advice regarding the default judgment process to Morgan Each of these actions qualifies as unauthorized practice of law. Despite being given the opportunity to do so, Petitioner never stated that he performed these services under the supervision of an attorney Accordingly, he cannot reasonably argue that State Bar abused its discretion Mot. at 17. 

Petitioner argues that State Bar’s arguments rely on unreliable evidenceState Bar’s declarant, Tiffany Sorensen, Esq. (“Sorensen”) admits that she did not have personal knowledge and relied on information from other personsSorensen’s investigation did not involve any direct communication with Petitioner, despite his attempts to do soKrazyman Decl., 3.   

When considering a vexatious litigant motion, the court does not assume the truth of a litigant’s factual allegations and must weigh any material evidence before deciding whether the litigant has a reasonable chance of prevailingGolin v. Allenby, (2010) 190 Cal.App.4th 616, 635The granting a section 391.1 motion does not preclude a trial; it merely requires a plaintiff to post securityMoran v. Murtaugh Miller Meyer & Nelson, LLP, (2007) 40 Cal.4th 780, 786Section 391.2 expressly states: “No determination made by the court in determining or ruling upon the motion shall be or be deemed to be a determination of any issue in the litigation or of the merits thereof.” 

It is true that Sorensen’s declaration relies on information obtained by Investigator Dillon from third parties but that does not mean it is inadmissible for purposes of this motion,  which is to determine whether Petitioner lacks any reasonable probability of prevailingSection 41 disposes of his tort claims and there is no reasonable prospect that posting the notice on State Bar’s website was arbitrary and capricious.   

In this regard, it is the information generated in the investigation that is relevant to the website noticeSorensen notes that, as the assigned Deputy Trial Counsel, she supervised Dillon, reviewed the investigation file, including the complaint, correspondence between Petitioner and Morgan, and Petitioner’s response to State Bar’s letter, which was notably absent of information whether he was performing services under the supervision of a lawyer Sorensen Decl., ¶¶ 6-9.   This investigative information could be relied upon in making the decision to issue a cease-and-desist letter and publishing the notice on its website.  Petitioner’s admissions show that the decision was not arbitrary and capricious.  See post. 

Petitioner also presents evidence concerning MorganHe contends that State Bar’s motion relies heavily on statements from Morgan, who has a proven history of dishonesty and false accusationsIn fact, Morgan is a convicted felon and registered sex offenderKrazyman Decl., ¶’s 4, 9, Ex. BMorgan’s complaint states that Krazyman had a Linkedin provide with the business name “Larry Krazyman Law Offices and he led her to believe he was an attorney acting as a paralegalKrazyman Decl., ¶8.   He never used those words and does not have such a Linkedin page.   Id .  The only thing he did for Morgan was legal researchHe never filed out a form for herWhile he said he could help her enforce a judgment, he only meant assist in getting a lawyerKrazyman Decl., ¶8.   Sorensen believed Morgan’s lies without doing appropriate research or investigationIdPetitioner has 20 years of experience working for law firms which has “gone down the toilet” as a result of Sorensen’s incompetent investigationKrazyman Decl., ¶11 He has applied to over 150 law firm sand has been denied a position due to Sorensen’s negligent investigation. Opp. at 9-11. 

State Bar replies that Petitioner accused Morgan of a history of dishonesty and criminal behavior in his communications with Morgan and State Bar, and Sorensen had this information when she issued the cease-and-desist letter The credibility of a witness also is not consequential to the court’s evaluative process under section 391.1.  Reply at 11. 

While Morgan’s credibility, or lack thereof, could affect the court’s evaluation if based solely or principally on herBut Sorensen issued the cease-and-desist letter because Petitioner offered “’experienced civil litigation services” on Craigslist and never indicated that he was supervised by an attorney, admitted to Morgan in a September 3, 2022 email that he could prepare the default for her, prepare “Default.2.Default Judgment”, and otherwise offered legal advice in subsequent emails.  These actions were the unauthorized practice of lawBus. & Prof. Code § 6126(a), 6127Sorensen Decl., Ex. D.  None of these actions were dependent on Morgan’s credibility. 

Petitioner has no reasonable prospect of prevailing in this case. 

 

4. Security and Pre-Filing Order 

State Bar argues that, because Petitioner is a vexatious litigant unlikely to prevail in this litigation, the court should order him to furnish security §391.1(a) The court “shall” order a plaintiff to furnish security for the benefit of the moving defendant before the action can proceed. IdThe indigence of a vexatious litigant is not a factor in setting the amount of the security McColm v. Westwood Park Ass’n, (1998) 62 Cal.App.4th 1211, 1219. If a plaintiff fails to pay security once it is ordered, the action must be dismissed §391.4.  Mot. at 18. 

State Bar counsel has spent approximately 30 hours in the preparation of the instant motion at a cost of $11,850, and will incur additional attorney’s fees drafting a reply in and preparing for and attending the hearing Jacobs Decl., ¶11; Rollan Decl., ¶4 Given that Defendants are entitled to attorneys’ fees if they prevail on a vexatious litigant motion (Singh v. Lipworth, (2005) 132 Cal.App.4th 40, 47), it is appropriate for the court to consider these costs in fixing the security. If the case proceeds, State Bar anticipates incurring at least $5100 in attorney’s fees in preparing an anti-SLAPP motion—another motion in which attorneys’ fees are recoverable§425.16 Rollan Decl., ¶5 Petitioner should be required to post security of not less than $6,500 before this case proceeds Mot. at 18. 

The court should also enter a pre-filing order that requires Petitioner to seek leave of the presiding judge before filing any new litigation Any such prefiling order must be provided to the Judicial Council §391.7(a), (f). A pre-filing order is directed at precluding the initiation of a meritless lawsuit and costs associated with defending such litigation Bravo v. Ismaj, (2002) 99 Cal.App.4th 211, 222.  Mot. at 18. 

The court agreesPetitioner shall post a $6500 undertaking and a pre-filing  order will be entered. 

 

F. Conclusion 

State Bar’s motion to declare Petitioner as a vexatious litigant is grantedPetitioner is ordered to post a $6500 cash or corporate surety bond within 14 calendar days, and provide evidence to opposing counsel that it has been postedShould he fail to do so, State Bar may apply ex parte to dismiss this caseSee §391.4A pre-filing order shall also issue and the clerk shall provide a copy to the Judicial CouncilSee §391.7(f). 


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